| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.2. | Treatymaking Capacity |
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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.
