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II. Substantive International Law - Second Part

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

[p. 102] 29. However, Portugal puts forward an additional argument aiming to show that the principle formulated by the Court in the case concerning Monetary Gold Removed from Rome in 1943 is not applicable in the present case. It maintains, in effect, that the rights which Australia allegedly breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect them regardless of whether or not another State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court (see 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, pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.

[pp. 105-106] 36. The Court recalls in any event that it has taken note in the present judgment (paragraph 31) that, for the two Parties, the Territory of East Timor remains a non-self-governing territory and its people has the right to self-determination.

[p. 135 S.O. Vereshchetin] Besides Indonesia, in the absence of whose consent the Court is prevented from exercising its jurisdiction over the Application, there is another "third party" in this case, whose consent was sought neither by Portugal before filing the Application with the Court, nor by Australia before concluding the Timor Gap Treaty. Nevertheless, the Applicant State has acted in this Court in the name of this "third party" and the Treaty has allegedly jeopardized its natural resources. The "third party" at issue is the people of East Timor.
Since the Judgment is silent on this matter, one might wrongly conclude that the people, whose right to self-determination lies at the core of the whole case, have no role to play in the proceedings. This is not to suggest that the Court could have placed the States Parties to the case and the people of East Timor on the same level procedurally. Clearly, only States may be parties in cases before the Court (Article 34 of the Statute of the Court). This is merely to say that the right of a people to self-determination, by definition, requires that the wishes of the people concerned at least be ascertained and taken into account by the Court.

[p. 138 S.O. Vereshchetin] The United Nations Charter, having been adopted at the very outset of the process of decolonization, could not explicitly impose on the administering Power the obligation to consult the people of a non-self-governing territory when the matter at issue directly concerned that people. This does not mean, however, that such a duty has no place at all in international law at the present stage of its development and in the contemporary setting of the decolonization process, after the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514 (XV)).
In the Western Sahara Advisory Opinion the Court states that : "in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory" (I.C.J. Reports 1975. p. 33, para. 59; emphasis added). By implication, it means that, as a rule, the requirement to consult does exist and only "in certain cases" may it be dispensed with. The exceptions to this rule are stated in the same dictum of the Court and, as has been shown above, they could not be held to apply in the present case. I believe that nowadays the mere denomination of a State as administering Power may not be interpreted as automatically conferring upon that State general power to take action on behalf of the people concerned, irrespective of any concrete circumstances.

[pp. 194-197 D.O. Weeramantry] All of these submissions make it important to note briefly the central nature of this right in contemporary international law, the steady development of the concept, and the wide acceptance it has commanded internationally. Against that background, any interpretations of that right which give it less than a full and effective content of meaning would need careful scrutiny.
In the first place, the principle receives confirmation from all the sources of international law, whether they be international conventions (as with the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights), customary international law, the general principles of law, judicial decisions, or the teachings of publicists. From each of these sources, cogent authority can be collected supportive of the right, details of which it is not necessary to recapitulate here.
Secondly, it occupies a central place in the structure of the United Nations Charter, receiving mention from it in more than one context.
Enshrined in Article 1(2) is the principle that friendly relations among nations must be developed by the United Nations on the basis of equal rights and self-determination. Developing such friendly relations is one of the Purposes of the United Nations - central to its existence and mission. There is thus an inseparable link between a major purpose of the United Nations and the concept of self-determination. The same conceptual structure is repeated in Article 55, which observes that respect for equal rights and self-determination is the basis on which are built the ideal of peaceful and friendly relations among nations.

Article 55 proceeds to translate this conceptual structure into practical terms. It recognizes that peaceful and friendly relations, though based on the principle of equal rights and self-determination, need conditions of stability and well-being, among which conditions of economic progress and development are specified.
Since the development of friendly relations among nations is central to the Charter, and since equal rights and self-determination are stated to be the basis of friendly relations, the principle of self-determination can itself be described as central to the Charter.

The Charter spells out its concern regarding self-determination with more particularity in Chapter XI. Dealing specifically with the economic aspect of self-determination, it stresses, in Article 55, that stability and well-being are necessary for peaceful and friendly relations, which are in their turn based on respect for the principle of equal rights and self-determination. With a view to the creation of these conditions of stability and well-being, the United Nations is under a duty to promote, inter alia, "conditions of economic ... progress and development" (emphasis added).

This is followed by Article 56 which contains an express pledge by every Member "to take joint and separate action, in co-operation with the Organization for the achievement of the purposes set forth in Article 55". This is a solemn contractual duty, expressly and separately assumed by every Member State to promote conditions of economic progress and development, based upon respect for the principle of self-determination.
With specific reference to non-self-governing territories, Article 73 of the United Nations Charter sets out one of the objects of the administration of non-self-governing territories as being:

"to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions ..." (Art. 73 (b)).

This responsibility is imposed upon the administering Power under the principle that the interests of the inhabitants of these territories are paramount. The solemn nature of this responsibility is highlighted in its description as a "sacred trust".
The central importance of the concept, and the desire to translate it into practical terms, are thus built into the law of the United Nations. Its Charter is instinct with the spirit of co-operation among nations towards the achievement of the Purposes it has set before itself. Integral to those Purposes, and providing a basis on which they stand, is the principle of self-determination.
Thirdly, the basic provisions of the Charter have provided the foundation upon which, through the continuing efforts of the United Nations, a superstructure has been built which again aims at practical implementation of the theoretical concept. Through its practical contribution to the liberty of nations, the world community has demonstrated its resolve to translate its conceptual content into reality.
Indeed, the General Assembly's special concern to translate this legal concept into practical terms has been unwavering and continuous, as reflected in its appointment of the Committee on Information from Non-Self-Governing Territories and the conversion of the Committee into a semi-permanent organ as a result of a General Assembly resolution of December 196l. The Special Committee (the Committee of Twenty-Four) on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples keeps this concern alive as a successor to the Committee of Information. That Committee has consistently retained the case of East Timor on its list of matters awaiting a satisfactory solution.
Landmark declarations of the United Nations on this matter have strengthened the international community's acceptance of this principle. The Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514 (XV) of 20 December 1960), and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV) of 24 October 1970) are among these Declarations. The International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966), constitute an unequivocal acceptance by treaty of the obligation to recognize this right.
The importance accorded to this right by all sections of the international community was well reflected in the discussions in the United Nations which preceded the acceptance of the Declaration of Friendly Relations. A recent study of these discussions collects these sentiments in a form which reflects the central importance universally accorded to this principle. As that study observes, the principle was variously characterized at those discussions as "one of the most important principles embodied in the Charter" (Japan); "one of the foundation stones upon which the United Nations was built" (Burma); "basic to the United Nations Charter" (Canada); "one of the basic ideals constituting the raison d'être of the Organization" (France); "the most significant example of the vitality of the Charter and its capacity to respond to the changing conditions of international life" (Czechoslovakia); "a universally recognized principle of contemporary international law" (Cameroon); "one of the fundamental norms of contemporary international law" (Yugoslavia); "a fundamental principle of contemporary international law binding on all States" (Poland); "one of paramount importance in the present era of decolonization" (Kenya); and "indispensable for the existence of [the] community of nations" (United States of America).
Reference should be made finally to this Court's contribution, which has itself played a significant role in the establishment of the concept on a firm juridical basis (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. 16; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12).

Such is the central principle on which this case is built. In adjudging between the two interpretations of this right presented to the Court by the two Parties, this brief survey of its centrality to contemporary international law is not without significance.
On the one hand, there is an interpretation of this right which claims that it is not violated in the absence of violation of an express provision of a United Nations resolution. It is pointed out, in this connection, that there are no United Nations resolutions prohibiting or criticizing the recognition of East Timor as a province of Indonesia. On the other hand, it is argued that being party to an agreement which recognizes the incorporation of a non-self-governing territory in another State and deals with the principal non-renewable asset of a people admittedly entitled to self-determination, before they have exercised their right to self-determination, and without their consent, does in fact constitute such a violation. The history of the right, and of its development and universal acceptance make it clear that the second interpretation is more in consonance with the content and spirit of the right than the first.
Against this background, it is difficult to accept that, in regard to so important a right, the duty of States rests only at the level of assistance to the United Nations in such specific actions as it may take, but lies dormant otherwise.

[pp. 197-198 D.O. Weeramantry] Sovereignty over their economic resources is, for any people, an important component of the totality of their sovereignty. For a fledgling nation, this is particularly so. This is the wisdom underlying the doctrine of permanent sovereignty over natural resources, and the wisdom which underlies the protection of this resource for a non-self-governing people until they achieve self-determination.
In the present case, it is impossible to venture a prediction as to how long it will be before the East Timorese people achieve self-determination. It may be a very brief period or it may take many years. The matter has remained unresolved already for nearly twenty years, since the Indonesian military intervention.
Should a period of years elapse until such time, and the Treaty is in full operation in the meantime, a substantial segment of this invaluable resource may well be lost to East Timor for all time. This would be a loss of a significant segment of the sovereignty of the people.

This is not a situation which international law, in its present state of development, can contemplate with equanimity.
At such time as the East Timorese people exercise their right to self-determination, they would become entitled as a component of their sovereign right, to determine how their wealth and natural resources should be disposed of. Any action prior to that date which may in effect deprive them of this right must thus fall clearly within the category of acts which infringe on their right to self-determination, and their future sovereignty, if indeed full and independent sovereignty be their choice. This right is described by the General Assembly, in its resolution on Permanent Sovereignty over Natural Resources, as "the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests ..." (General Assembly resolution 1803 (XVII)). The same resolution notes that strengthening permanent sovereignty over natural resources reinforces the economic independence of States.

Resolution 1803 (XVII) is even more explicit in that it stresses that:

"The exploration, development and disposition of such resources ... should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities." (I, para. 2; emphasis added.)

The exploration, development and disposition of the resources of the Timor Gap, for which the Timor Gap Treaty provides a detailed specification, has most certainly not been worked out in accordance with the principle that the people of East Timor should "freely consider" these matters, in regard to their "authorization, restriction or prohibition".

The Timor Gap Treaty, to the extent that it deals with East Timorese resources prior to the achievement of self-determination by the East Timorese people, is thus in clear violation of this principle.

[p. 202 D.O. Weeramantry] However this may be, the central issue before the Court is whether the acteptance of this right of East Timor accords with the conclusion of a Treaty recognizing East Timor as a province of Indonesia, and whether that act of concluding the Treaty militates against such rights as East Timor may enjoy to the natural resources that are dealt with by the Treaty. There is no qualification anywhere in that Treaty of the recognition it accords to Indonesian sovereignty, such as appears in the statements of Australia made outside the Treaty.
Upon the basis of the averments in the Treaty, it would seem therefore that Portugal's assertion of an incompatibility between Australia's action in entering into the Timor Gap Treaty, and Australia's recognition of the principle of self-determination, raises issues requiring close consideration.
If self-determination is a right assertible erga omnes, and is thus a right opposable to Australia, and if Australia's action in entering into the Treaty is incompatible with that right, Australia's individual action, quite apart from any conduct of Indonesia, would not appear to be in conformity with the duties it owes to East Timor under international law.

[p. 209 D.O. Weeramantry] The existence of a right is juristically incompatible with the absence of a corresponding duty. The correlativity of rights and duties, well established in law as in logic (see, especially, Hohfeld, Fundamental Legal Conceptions, 1923), means that if the people of East Timor have a right erga omnes to self-determination, there is a duty lying upon all Member States to recognize that right. To argue otherwise is to empty the right of its essential content and, thereby, to contradict the existence of the right itself. It is too late in the day, having regard to the entrenched nature of the rights of self-determination and permanent sovereignty over natural resources in modern international law, for the accompanying duties to be kept at a level of non-recognition or semi-recognition.

[p. 211 D.O. Weeramantry] Juristically analysed, it is not appropriate to view self-determination as though the totality of the duties it entails consist only in obedience to specific directions of the United Nations. Performance of duties and obligations must be tested against the basic underlying norms and principles, rather than against such specific directions or prohibitions as might have been prescribed. Quite clearly, an obligation cannot cease to exist merely because specific means of compliance are not prescribed, nor is its underlying general principle exhausted by the enumeration of particular itemized duties. The duty of respect and compliance extends beyond the letter of specific command and prohibition.

[p. 212 D.O. Weeramantry] In the circumstances of this case, the act of being party to the Timor Gap Treaty would appear to be incompatible with recognition of and respect for the principle of East Timor's rights to self-determination and permanent sovereignty over natural resources inasmuch as, inter alia, the Treaty:

(1) expressly recognizes East Timor as a province of Indonesia without its people exercising their right;
(2)deals with non-renewable natural resources that may well belong to that Territory;
(3)makes no mention of the rights of the people of East Timor, but only of the mutual benefit of the peoples of Australia and Indonesia in the development of the resources of the area (Preamble, para. 6);
(4)makes no provision for the event of the East Timorese people deciding to repudiate the Treaty upon the exercise of their right to self-determination;
(5)specifies an initial period of operation of 40 years, with possible renewals for successive terms of 20 years; and
(6)creates a real possibility of the exhaustion of this resource before it can be enjoyed by the people of East Timor.

These aspects, all prima facie contradictory of the essence of self-determination and permanent sovereignty over natural resources, do not cease to have that character because treaty-making with Indonesia has been expressly prohibited.

[p. 215 D.O. Weeramantry] It has thus happened that no Judgment of this Court thus far has addressed the consequences of violation of an erga omnes obligation. The present case, had it passed the jurisdictional stage, would have been just such a case where the doctrine's practical effects would have been considered. Since this opinion proceeds on the basis that the merits must be considered, it must advert to the consequences of violation of an erga omnes obligation.
All the prior cases before this Court raised the question of duties owed erga omnes. That aspect is present in this case as well, for every State has an erga omnes duty to recognize self-determination and, to that extent, if Portugal's claim is correct, Australia is in breach of that general erga omnes duty towards East Timor 1.

However, this case has stressed the obverse aspect of rights opposable erga omnes - namely, the right erga omnes of the people of East Timor to the recognition of their self-determination and permanent sovereignty over their natural resources. The claim is based on the opposability of the right to Australia.
In Barcelona Traction, the Court's observations regarding obligations owed to the international community as a whole were not necessary to the case before it. Yet, though its observations were obiter, the notion of obligations erga omnes developed apace thereafter.

The present case is one where quite clearly the consequences of the erga omnes principle follow through to their logical conclusion - that the obligation which is a corollary of the right may well have been contravened. This would lead, in my view, to the grant of judicial relief for the violation of the right.
I am conscious, in reaching this conclusion, that the violation of an erga omnes right has not thus far been the basis of judicial relief before this Court. Yet the principles are clear, and the need is manifest for a recognition that the right, like all rights, begets corresponding duties.

[p. 266 D.O. Skubiszewski] 136. By. virtue of Chapter XI of the Charter the East Timorese right to self-determination is the focal point of the status of the Territory. This has been confirmed by several United Nations resolutions which have been adopted since the invasion of East Timor by Indonesia and since the incorporation of the Territory into that State.

137. The issue is not limited to the quadrilateral relationship (which today finds its expression in the Geneva consultations), that is, the people of East Timor, the United Nations, Portugal and Indonesia. In particular, the duty to comply with the principle of self-determination in regard to East Timor does not rest with Portugal and Indonesia alone. Depending on circumstances, other States may or will also have some obligations in this respect. By negotiating and concluding, and by beginning to implement the Timor Gap Treaty, Australia placed itself in such a position.

1Footnote omitted