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III. The International Court of Justice
2.8. Jurisdiction and Third States

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

[pp. 100-101] 23. The Court will now consider Australia's principal objection, to the effect that Portugal's Application would require the Court to determine the rights and obligations of Indonesia. The declarations made by the Parties under Article 36, paragraph 2, of the Statute do not include any limitation which would exclude Portugal's claims from the jurisdiction thereby conferred upon the Court. Australia, however, contends that the jurisdiction so conferred would not enable the Court to act if, in order to do so, the Court were required to rule on the lawfulness of Indonesia's entry into and continuing presence in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity. Portugal agrees that if its Application required the Court to decide any of these questions, the Court could not entertain it. The Parties disagree, however, as to whether the Court is required to decide any of these questions in order to resolve the dispute referred to it.

24. Australia argues that the decision sought from the Court by Portugal would inevitably require the Court to rule on the lawfulness of the conduct of a third State, namely Indonesia, in the absence of that State's consent. In support of its argument, it cites the Judgment in the case concerning Monetary Gold Removed from Rome in 1943, in which the Court ruled that, in the absence of Albania's consent, it could not take any decision on the international responsibility of that State since "Albania's legal interests would not only be affected by a decision, but would form the very subject-matter of the decision" (I.C.J. Reports 1954, p. 32).

25. In reply, Portugal contends, first, that its Application is concerned exclusively with the objective conduct of Australia, which consists in having negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that this question is perfectly separable from any question relating to the lawfulness of the conduct of Indonesia. According to Portugal, such conduct of Australia in itself constitutes a breach of its obligation to treat East Timor as a non-self-governing territory and Portugal as its administering Power; and that breach could be passed upon by the Court by itself and without passing upon the rights of Indonesia. The objective conduct of Australia, considered as such, constitutes the only violation of international law of which Portugal complains.

26. The Court recalls in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction. This principle was reaffirmed in the Judgment given by the Court in the case concerning Monetary Gold Removed from Rome in 1943 and confirmed in several of its subsequent decisions (see Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 25, para. 40; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 431, para. 88; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 579, para. 49; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 114-116, paras. 54-56, and p. 112, para. 73; and Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 259-262, paras. 50-55).

[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. 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. 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 admintering 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 nonself-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. 104-105] 34. The Court emphasizes that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case. Thus, in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), it stated, inter alia, as follows:

"In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru's Application ... In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru's claim ... In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court's decision on Nauru's claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction." (I.C.J. Reports 1992, pp. 261-262, para. 55.)

However, in this case, the effects of the judgment requested by Portugal would amount to a determination that Indonesia's entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia's rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State's consent. Such a judgment would run directly counter to the "well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent" (Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32).

35. The Court concludes that it cannot, in this case, exercise the jurisdiction it has by virtue of the declarations made by the Parties under Article 36, paragraph 2, of its Statute because, in order to decide the claims of Portugal, it would have to rule, as a prerequisite, on the lawfulness of Indonesia's conduct in the absence of that States consent. This conclusion applies to all the claims of Portugal, for all of them raise a common question: whether the power to make treaties concerning the continental shelf resources of East Timor belongs to Portugal or Indonesia, and, therefore, whether Indonesia's entry into and continued presence in the Territory are lawful. In these circumstances, the Court does not deem it necessary to examine the other arguments derived by Australia from the non-participation of Indonesia in the case, namely the Court's lack of jurisdiction to decide on the validity of the 1989 Treaty and the effects on Indonesia's rights under that treaty which would result from a judgment in favour of Portugal.

[p. 113 S.O. Oda] 8. The present Judgment, in my view, seems to rely heavily on the jurisprudence of the case concerning Monetary Gold Removed from Rome in 1943 (1954). That case does not seem to be relevant to the present case as the Court found in 1954 that "[t]o go into the merits of [questions which relate to the lawful or unlawful character of certain actions of Albania vis-à-vis Italy]" in a case brought by Italy against France, among other co-Respondents, "would be to decide a dispute between Italy and Albania" and that "[t]he Court cannot decide such a dispute without the consent of Albania" (I.C.J. Reports 1954, p. 32). In that case "Albania's legal interests would not only be affected by a decision [of the Court], but would form the very subject-matter of the decision" (ibid.).
The present case is quite different in nature. The dispute does not relate to whether Indonesia, the third State, was entitled in principle to conclude a treaty with Australia, but rather the subject-matter of the whole case relates solely to the question of whether Portugal or Indonesia, as a State lying opposite to Australia, was entitled to the continental shelf in the "Timor Gap". This could have been the subject of a dispute between Portugal and Indonesia, but cannot be a matter in which Portugal and Australia can be seen to be in dispute with Indonesia as a State with "an interest of a legal nature which may be affected".

[pp. 119-120 S.O. Shahabuddeen] Reflecting a view generally held in municipal law, Article 59 of the Statute of the Court provides that "[t]he decision of the Court has no binding force except between the parties and in respect of that particular case". But it does not follow that the Court is free to determine a dispute between parties in entire disregard of the implications of the decision for the legal position of a non-party. Under one form or another of an "indispensable parties" rule, the problem involved is solved in domestic legal systems through an appropriate exercise of the power of joinder. The Court lacks that power; and the right of intervention, or to institute separate legal proceedings where possible, is not always a sufficient safeguard. Hence, when situations arise in which the requested judgment would in fact, even though not in law, amount to a determination of the rights and obligations of a non-party, the Court is being asked to exercise jurisdiction over a State without its consent. Monetary Gold Removed from Rome in 1943 says it cannot do that.

That precedent has given rise to questions 1. In a fundamental sense the questions stem from the fact that, as was remarked by Judge Jessup, "Law is constantly balancing conflicting interests" (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 206, para. 81, separate Opinion). The interests which are in conflict here, and which need to be balanced against each other if collision is to be avoided, are those of Portugal in having its case determined by the Court notwithstanding possible effects of the decision on Indonesia, and those of Indonesia in not having its rights and obligations determined by the Court without its consent. Problems of this kind are apt to arise from the fact that, in the increasingly complex character of international relations, legal disputes between States are rarely purely bilateral. The argument follows that, as it was put to the Court in another case, if

"the Court could not adjudicate without the presence of all such States, even where the parties before it had consented fully to its jurisdiction, the result would be a severe and unwarranted constriction of the Court's ability to carry out its functions" 2.

It is difficult to think of any point at which a balance may be struck between these competing considerations without the Court having sometimes to assume jurisdiction notwithstanding that the interests of a non-party State would to some extent be affected, as has happened in some cases. A fair interpretation is that what the Court has been doing was to identify some limit beyond which the degree to which the non-party State would be affected would exceed what is judicially tolerable. That limit is reached where, to follow the language of the Court, the legal interests of the non-party would not merely be affected by the judgment, but would constitute its very subject-matter.

[pp. 122-123 S.O. Shahabuddeen] The premise of Portugal's claim is that, whatever may be the basis, it possesses the exclusive power to enter into treaties on behalf of East Timor in respect of the resources of its continental shelf; Australia contends that it is Indonesia which possesses the power. The premise of Portugal's claim is thus in dispute.

The Court must first resolve this dispute relating to Portugal's premise, by determining that the treaty-making power belonged to Portugal and therefore of necessity that it did not belong to Indonesia, before it could go on to determine whether Australia engaged international responsibility by negociating and concluding the 1989 Treaty with Indonesia and by commencing to implement it. In effect, a prerequisite to a decision against Australia is a determination that Indonesia did not possess the treaty-making power. In the ordinary way, the Court could not make that determination without considering whether the circumstances of Indonesia's entry into and continuing presence in East Timor disqualified it from acquiring the power under general international law. That would involve the determination of a question of Indonesia's responsibility in the absence of its consent. The Court cannot do that.

[p. 124 S.O. Shahabuddeen] However, even if Portugal's interpretation of the resolutions is correct, the result need not be affected. The prerequisite of which the Court must ultimately be satisfied is that, whatever may be the basis, the treaty-making power lay with Portugal and not with Indonesia. If the Court were to accept Portugal's interpretation of the resolutions as correct, what it would be deciding, without hearing Indonesia on a substantial question of interpretation, is that it was Portugal and not Indonesia which possessed the treaty-making power; acceptance of Portugal's interpretation as correct would merely shorten the proof of Portugal's claim to the power. Indonesia's legal interests would nonetheless be determined in its absence. In effect, the question is not merely whether Portugal's interpretation is correct, but whether, in reaching the conclusion that it is correct, the Court would be passing on Indonesia's legal interests.

There is a further point. As the Court would be barred by the Monetary Gold principle from acting even if Portugal's interpretation of the resolutions were correct, it is possible to dispose of Portugal's Application without the necessity for the Court to determine whether or not the resolutions do indeed bear the interpretation proposed by it; the Court could arrive at its judgment assuming, but without deciding, that Portugal's interpretation is correct.

[p. 127 S.O. Shahabuddeen] It was also argued for Portugal that, by virtue of Article 59 of the Statute of the Court, a judgment of the Court in favour of it would be binding only as between itself and Australia; Indonesia, as a non-party to the case, would not be bound. But the problem involved is more fundamental than that to which that provision is directed. The provision applies to a judgment duly given as between the litigating parties; until such a judgment has been given, the provision does not begin to speak (see, on this point, Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 33, first paragraph). For the reasons set out above, the judgment requested by Portugal would not be a judgment duly given even as between the litigating Parties. The fact that, by virtue of Article 59 of the Statute, Indonesia would not be bound is not a reason why the Court should attempt to do what it cannot legally do: the provision does not operate as a standing reservation in law subject to which the Court is at liberty to pronounce on the legal interests of a State in the absence of its consent.

[pp. 131-132 S.O. Ranjeva] A prior decision, in the meaning in which it is understood in the Judgment delivered in the Monetary Gold case would be essential, it seems to me, when the object of that prior decision is subjective rights, in other words, rights relating to the legal situation of a State which has not consented to the jurisdiction or which does not appear before the Court. Can the same principle be transposed in cases where the prior decision concerns a question of objective rights opposable erga omnes? This question can no longer be avoided since the jus cogens falls within the province of positive law. The difficulty resides in the fact that, by nature, the rules of objective law transcend the order of conventional rules and that disputes involving objective law call into question the legal interests of third States. Is the purpose of the rule of Monetary Gold to limit the domain of the Court's jurisdiction ratione juris solely to disputes involving subjective rights? To refer without any explanation to the jurisprudence in Monetary Gold leaves too many questions open for it to satisfy the requirements of the good administration of justice, one of whose components is the foreseeability of legal decisions; this observation is all the more valid since the same results could have been obtained and reinforced on the basis of an actual analysis of Portugal's Application.

[p. 132 S.O. Ranjeva] In the present dispute, by partly but principally requiring the "nullification" of the treaty obligations entered into by Australia vis-à-vis Indonesia and thus depriving Indonesia of the benefit of the effects of the principle pacta sunt servanda, a decision of the Court would have adjudicated directly upon Indonesia's rights. Such a solution cannot be accepted in international law without there being any need, as a prerequisite, for a decision relating to the lawfulness of the entry into and continued presence of Indonesia in the Territory of East Timor.

[pp. 153-154 D.O. Weeramantry] It is against this specific background of admitted or manifest circumstances that the preliminary objection must be considered as to whether the "Monetary Gold principle" presents a barrier to the consideration of Portugal's claim. It has been strenuously argued that Monetary Gold does present such a barrier. Having regard to the multiplicity of circumstances set out above, which relate to Australia's obligations and actions alone, I regret very much that I am unable to agree. In my view, all the essentials necessary for the Court to adjudicate upon Portugal's claim against Australia are present, without the need for any adjudication against Indonesia.
Australia is party to a treaty which deals, inter alia, with resources acknowledgedly belonging to the East Timorese people who are acknowledgedly a non-self-governing people. So long as they continue to be a non-self-governing people, those resources will continue to belong to them by incontrovertible principles of the law of nations. At such time as they achieve self-determination, they may deal with these resources in such manner as they freely choose. Until such time, the international legal system protects their rights for them, and must take serious note of any event by which their rights are disposed of, or otherwise dealt with, without their consent. Indeed, the deepest significance of the right of a non-self-governing people to permanent sovereignty over natural resources lies in the fact that the international community is under an obligation to protect these assets for them.
The Respondent fully acknowledges that East Timor is still a non-self-governing territory and so, also, does the United Nations, which is the appropriate authority on these matters. While the United Nations still awaits "an internationally acceptable solution" to the question, the Court must examine whether it accords with the international rule of law that any Member State of the United Nations should be in a position:

(a)to enter into a treaty with another State, recognizing that the territory awaiting self-determination has been incorporated into another State as a province of that State, and
(b)to be party to arrangements in that treaty which deal with the resources of that territory, without the consent either of the people of the territory, or of their authorized representative.

That is the dominant issue before the Court. It centres on the actions of the Respondent and not of the third State.
In the light of the totality of incontrovertible circumstances outlined earlier in this section, the Court does not need to enter into an enquiry into the lawfulness of the conduct of that third State or of its presence in East Timor.
If East Timor is still a non-self-governing territory, every member of the community of nations, including Australia, is under a duty to recognize its right to self-determination and permanent sovereignty over its natural resources. If this is so, as is indubitably the case, the Court would be in possession of all the factual material necessary for the Court to pronounce upon the responsibility of the Respondent State, which is in fact before it. Nor would it, in the slightest degree, be encroaching upon the prohibited judicial territory of making a judicial determination in relation to an absent third party.

[p. 156 D.O. Weeramantry] One of the matters at issue in Monetary Gold was whether Albanian gold should be awarded to Italy on the basis of Albanian wrongdoing. It was clearly impossible for the Court to determine this question in the absence of Albania, whose property and wrongdoing were the very subject-matter on which the Italian claim was based.

The present case presents a totally different picture. The obligations and the conduct of Indonesia are not the very subject-matter of this case. The obligations and the conduct of Australia are, and Australia is before the Court.
Independently of an enquiry into the conduct of Indonesia, the preceding section of this opinion has shown that the Court has before it sufficient materials relating to the duties, the responsibilities and the actions of Australia, to enable it to make a pronouncement thereon. It does not need to open up vast expanses of enquiry into Indonesia's conduct, or military operations or any other items which may have provoked international concern, to decide this matter. Far less does it need to adjudicate upon these. The sharp focus upon Australia's acts and responsibilities which is necessary for a determination of these issues can only be blurred by such an undertaking.

[p. 157 D.O. Weeramantry] The Court was stressing, quite naturally, that Albania's interests would not merely be affected by the decision, but would be the very subject-matter of the decision, and that "the vital issue" to be settled concerned the international responsibility of Albania itself. The generality of the phraseology adopted by the Court has sometimes led to a tendency to cite these passages as authority for propositions far wider than were warranted by the extremely limited circumstances of the case - namely, that Albanian property could not be appropriated on the basis of Albanian wrongdoing in the absence of Albania. In the present case, no claim is being made against Indonesia, no decision is sought against Indonesia, and the vital issue is not the international responsibility of Indonesia.
Indonesia's legal interests may be affected by the decision, but they are not the very subject-matter of the decision, in the sense that Albanian gold was the actual subject-matter of Monetary Gold.
The Court's determinations on matters pertaining to Australia's obligations and actions may indeed have consequences, not only for Indonesia but for other countries as well, for Australia has, in the course of its submissions, informed the Court that several countries have dealt with Indonesia in respect of East Timor (CR 95/10, pp. 20-21). If the Judgment of the Court raises doubts about the validity of those treaties, those other countries who have acted upon the validity of the treaty may well be affected. Yet, it cannot be suggested that they be all joined, or that, for that reason, the Court is not competent to hear the claim before it.

[p. 160 D.O. Weeramantry] While it is important, then, that objections based on lack of third party consent must receive the Court's most anxious scrutiny, there is to be weighed against it, in areas of doubt, the other consideration, equally important, of the Court's Statutory duty to decide a dispute properly brought before it within its judicial authority. Too strict an application of the first principle can result in an infringement of the second.
In the international judicial system, an applicant seeking relief from this Court has, in general, nowhere else to turn if the Court refuses to hear it, unlike in a domestic jurisdiction where, despite a refusal by one tribunal, there may well be other tribunals or authorities to whom the petitioner may resort.

[pp. 173-174 D.O. Weeramantry] It is self-evident that while a treaty is a bilateral or multilateral instrument, it comes into existence through the fusion of two or more unilateral acts, as the case may be. What the Court is invited to consider in this case is not the unlawfulness of the bilateral Treaty, but the unlawfulness of the Respondent's unilateral actions which went into the making of that Treaty.
It is a clear principle in the domestic law of obligations that the unlawfulness of a contract and the unlawfulness of the conduct of the parties to it are different concepts. A similar principle is to be found in the law of treaties, where there could, for example, be a valid treaty even though one party acts unlawfully by its domestic law in entering into it (Vienna Convention, Art. 46), or when a representative acts in violation of a specific restriction validly placed upon him by his State (Art. 47). The treaty is nevertheless binding.
The Court is not called upon to pronounce upon the unlawfulness or otherwise of the Treaty, or upon the unlawfulness or otherwise of Indonesia's conduct, but upon the unlawfulness or otherwise of Australia's unilateral act in entering into it. What are the legal obligations of a particular party, what are its acts, to what extent do those acts contravene its obligations - those are the questions bearing upon the unilateral conduct of one party, which the Court is called upon to decide. The invalidity of the Treaty, or of the other party's conduct, is not the precondition, as Australia suggests, for the Court's finding on the unlawfulness of Australia's conduct.
The acts of a contracting State, such as the decision to sign, the decision to accord de jure recognition, the decision to ratify, the decision to implement, the decision to legislate, are all unilateral acts upon which the Court can adjudicate.

[p. 242 D.O. Skubiszewski] 59. I shall start by recalling the distinction between, on the one hand, a legal interest or interests of a third State (here Indonesia) being possibly or actually involved in, or affected by, the case (but no more than that) and, on the other hand, the ruling by the Court on such an interest or interests. In the latter hypothesis the legal interest or interests "would not only be affected by a decision, but would form the very subject-matter of the decision" (Monetary Gold Removed from Rome in 1943, Judgement, I.C.J. Reports 1954, p. 32), and that decision (i.e., the decision on the responsibility of the third State) would become "a prerequisite" for the determination of the claim (cf. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55; ibid., p. 296, Judge, Shahabuddeen, separate opinion). The present case merely "affects" or in a different manner "involves" an interest or interests of Indonesia. The rule of consent, as embodied in Article 36 of the Statute, is maintained; had the Court assumed jurisdiction, it would not, and could not, pass on any rights and/or duties of Indonesia. That country is, in particular, protected by Article 59 of the Statute, whatever the possible broader effects of the Judgment.

60. The nature, extent or degree of the involvement of the legally protected interests, including the rights and duties, of a third State differ from case to case. The Court must see whether it can decide on the claim without ruling on the interests of a third State. The involvement of these interests cannot simply be equated with the determination of the rights and/or duties of a third State by the Court, or with any determination concerning that State's responsibility. If a decision on the claim can be separated from adjudicating with regard to a State which is not party to the litigation, the Court has jurisdiction on that claim. It is submitted that this is the position in the triangle Portugal-Australia-Indonesia. Here the said separation is not only possible, but already exists. Portugal did not put at issue the legal interests of a third State, i.e., Indonesia. The Court has jurisdiction.

[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 3.

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. 248-249 D.O. Skubiszewski] 78. The law of the United Nations is binding on all Member States. The status of a territory, in view of its objective nature, is opposable not only to each of them but also to non-Members. This applies to the non-self-governing Territory of East Timor. Also, the right of the East Timorese people to freely determine their future and the position of the administering Power are opposable to every State (and this includes Australia). Therefore, in this context, it is erroneous to regard Australia as the "wrong" respondent and Indonesia as the "true" one. The present case does not justify such a contradistinction. Nor, as the Court explains, is it "relevant whether the 'real dispute' is between Portugal and Indonesia rather than Portugal and Australia" (Judgment, para. 22). There is, no doubt, more than one dispute with regard to East Timor, but in this case the Court has been seised of a specific dispute which qualifies for being decided on the merits.

79. There is yet another reason why the presence of Indonesia, a country which has an interest in the case (although it made no request concerning its possible intervention), is not a precondition of adjudication. If the contrary were true, the Court would practically be barred from deciding whenever the application of the erga omnes rule or rules and the opposability of the legal situation so created were at stake; the Court's practice does not corroborate such a limitation (paras. 64 and 65 above). The presence of a third State in the proceedings before the Court (whether as party or intervening) is not necessary for that organ to apply and interpret the United Nations resolutions, in particular to take note of their effect.

[pp. 250-251 D.O. Skubiszewski] 84. In the present case the Judgment in Monetary Gold is fully relevant as a statement of the non-controversial rule (or principle) of the consensual basis of jurisdiction. The Court has been corroborating this rule since the very outset of its activity (cf. Corfu Channel case, Preliminary Objection, Judgment, I.C.J. Reports 1948, p. 27). It is a rule of its Statute, which fact is decisive. Further, there can be no doubt regarding the relevance of the distinction between legal interests of a third State which are merely affected by the decision and its legal interests which "would form the very subject-matter" of the decision (Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32). But the whole structure of the problem in Monetary Gold is different from that in East Timor. In the former the determination whether one country (Italy) was entitled to receive the property of another (Albanian gold) depended on a prior determination whether the other State (Albania) had committed an internationally wrongful act against the former (Italy) and was under an obligation to pay compensation to it. In the East Timor case the position of Indonesia cannot be compared to that of Albania in Monetary Gold. In the present case we are dealing with the duties which the countries have by virtue of their obligation to respect the status of East Timor as determined by the United Nations. These duties are not interconnected: the obligation of any Member State of the United Nations to abide by the law governing East Timor is autonomous. In Monetary Gold one claim could be adjudicated only after a different claim to compensation was first granted. That is not the construction of the case now before the Court. With respect, I have the impression that in this case the Court has gone beyond the limit of the operation of Monetary Gold.

[pp. 252-253 D.O. Skubiszewski] 90. In the present case there it is not necessarily implied that the Court should determine the status of Indonesia in East Timor. The Court need only refer to the status of East Timor in the law of the United Nations and its implementing resolutions. It is on Australia's own acts related to the latter status that Portugal rests its claim. It is also in that status alone that one would possibly find the answer to the question regarding which country is competent to conclude treaties concerning East Timorese interests. Contrary to what is stated in the Counter-Memorial (para. 212) the Court need not determine "the legal status of the Indonesian administration of East Timor at and since 11 December 1989, i.e., at the time of and since the making of the Timor Gap Treaty". The Court needs only to say what, under United Nations law and resolutions, the status of East Timor in the relevant period was and now is. Nor is a "decision on Indonesia's claim to sovereignty ... a prerequisite to any finding of Australian responsibility" (contra: ibid.). Again, the key to the problem is the status of the Territory under United Nations norms. To declare how these norms define that status the Court need not make any finding concerning Indonesia.

91. The link between the claims which Portugal makes vis-à-vis Australia and the claims Portugal has or might have made elsewhere against Indonesia (i.e., not before this Court) is of a factual nature. Both groups of claims concern the situation in East Timor. That link does not suffice to make the adjudication between Portugal and Australia dependent upon a prior or at least simultaneous decision on the (potential or existing) claims of Portugal against Indonesia. In contrast with the situation in the Monetary Gold case, the decision of the Court in the dispute between Portugal and Australia would not be based on the obligation and responsibility of Indonesia (cf. Judge Shahabuddeen in Certain Phosphate Lands in Nauru (Nauru v. Australia),. Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 297, separate opinion).

[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.

[p. 274 D.O. Skubiszewski] 159. The conduct of Australia, like that of any other Member State, can be assessed in the light of the United Nations resolutions. Such an assessment does not logically presuppose or require that the lawfulness of the behaviour of another country should first be examined. Member States have obligations towards the United Nations which in many instances are individual and do not depend on what another State has done or is doing. To that extent the Court has jurisdiction. Here no prerequisite is imperative. The principal judicial organ of the United Nations cannot desist from such assessment when the dispute submitted to the Court falls under Article 36, paragraph 2, of the Statute. On the other hand, in the present case, because of the non-participation of Indonesia, the Court has no jurisdiction to pass upon the conduct of Indonesia.

1Footnote omitted.
2Footnote omitted.
3The 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).