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World Court Digest

I. Substantive International Law - First Part
8.6. Participation

¤ 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 Courts 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. 170 D.O. Weeramantry] Principles of State responsibility, based on the autonomous and individual nature of each State, require that where two States are accessory to a wrongful act, each State must bear international responsibility for its own internationally wrongful act.

[p. 172 D.O. Weeramantry] Australia's submission that its responsibility "could at all events be no more than consequential, derived from the responsibility of Indonesia" (CR 95/8, p. 8) does not accord with basic principles of State responsibility, for, to use again the language of the same rapporteur:

"One of the principles most deeply rooted in the doctrine of international law and most strongly upheld by State practice and judicial decisions is the principle that any conduct of a State which international law classifies as a wrongful act entails the responsibility of that State in international law." 1

Even if the responsibility of Indonesia is the prime source, from which Australia's responsibility derives as a consequence, Australia cannot divert responsibility from itself by pointing to that primary responsibility.

[p. 173 D.O. Weeramantry] In this network of interlocking international relationships, each State which is impugned by another for failure to abide by its international obligations must answer for itself, in accordance with the principle of individual responsibility already outlined. It cannot plead another State's responsibility as an excuse for its own failure to discharge its own responsibility. That other State will answer for itself when the appropriate situation arises and may perhaps be affected by the judgment the Court renders in the case before it.
If, for example, the Court held with Portugal in this case, this finding would have repercussions on many other States which may or may not have acted in accordance with their individual obligations to recognize the rights of East Timor. This Court cannot concern itself with all those ramifications of a finding which it delivers in accordance with binding norms of international law. The Court cannot anticipate them all, in a world order of criss-crossing multilateral obligations.

1Footnote omitted