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Published online by Cambridge University Press: 07 July 2009
On 30 June 1995 the International Court of Justice delivered its Judgment in the East Timor case. The dispute before the Court involved proceedings instituted by Portugal against Australia in 1991 because of the conclusion of the so-called Timor Gap Treaty of 1989 between Australia and Indonesia. The Treaty concerns the joint exploitation of the continental shelf lying between the territory of East Timor and the northern coast of Australia (the so-called Timor Gap). Portugal asserted its position as the administering power of East Timor and claimed that Australia should have concluded and implemented the joint exploitation treaty with it rather than Indonesia.
1. See the East Timor case (Portugal v. Australia) Judgment of 30 June 1995, General List No. 84, ICJ Rep. (1995) p. 90. Text in 34 ILM (1995) p. 1583.
2. See generally Elliot, P.D., ‘The East Timor Dispute’, 27 ICLQ (1978) p. 238CrossRefGoogle Scholar; Guilhaudis, J.F., ‘La Question de Timor’, 23 AFDI (1977) p. 307CrossRefGoogle Scholar; Lawrence, P., ‘East Timor’, 12 EPIL (1990) p. 94Google Scholar; Chinkin, Ch.M., ‘East Timor Moves into the World Court’, 4 EJIL (1993) p. 206CrossRefGoogle Scholar; idem, ‘The East Timor Case (Portugal v. Australia)‘, 45 ICLQ (1996) p. 712 at pp. 713–715Google Scholar; Maffei, M.C., ‘The Case of East Timor before the International Court of Justice – Some Tentative Comments’, 4 EJIL (1993) p. 223CrossRefGoogle Scholar; Franck, Th.M., Fairness in International Law and Institutions (1995) p. 198Google Scholar; Cassese, A., Self-Determination of Peoples. A Legal Reappraisal (1995) pp. 223–230Google Scholar. For further bibliography on the subject see supra, Cassese p. 223 fn. 27; Chinkin, ‘The East Timor case’, supra, Cassese p. 713 fn. 6.
3. See the Letter dated 7 December 1975 trom the representative of Portugal to the President of the Security Council, Doc. S/1 1899, SCOR 30th, Suppl. for October-December 1975, pp. 53–54.
4. SCOR 30th, 1864th meeting paras. 8–64.
5. Ibid. para. 22.
6. Ibid. paras. 67–94.
7. See SC Res. 384 (1975) of 22 December 1975; SC Res. 389 (1976) of 22 April 1976. Also see GA Res. 3485 (XXX) of 12 December 1975; 3153 (XXXI) of 1 December 1976; 32/34 of 28 November 1977; 33/39 of 13 December 1978; 34/40 of 21 November 1979; 35/27 of 11 November 1980; 36/50 of 24 November 1981; 37/30 of 23 November 1982, in Cassese, op. cit. n. 1, at p. 224 fn. 28.
8. Cassese, op. cit. n. 2, at p. 224.
9. See Chinkin, ‘The East Timor Case …’, loc. cit. n. 2, at p. 715 fnn. 20, 21.
10. ICJ Rep. (1995) p. 90, pp. 94–95, para. 10.
11. Ibid. p. 99, para. 20.
12. Ibid. p. 106, para. 38. The dissenting Judges were Judge-Weeramantry and Judge Ad Hoc Skubiszewski.
13. Ibid. p. 102, paras. 28–29.
14. Ibid. p. 101, para. 26.
15. Ibid. p. 102, para. 29.
16. Idem.
17. Ibid. pp. 103–104, paras. 30–32.
18. Ibid. pp. 105–106, para. 37.
19. Judge Weeramantry pointed out in his dissenting opinion that it was incompatible for Australia to treat East Timor as a non-self-governing territory and at the same time to enter into a treaty in which the territory is recognized as de jure incorporated into Indonesia. See supra, n. 1, (per Judge Weeramantry) pp. 48–49.
20. ICJ Rep. (1995) p. 90, pp. 101–102, paras. 26, 28–29.
21. Ibid. p. 101, para. 26.
22. ICJ Rep. (1954) p. 19, at p. 32.
23. See the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicarague v. USA) (Jurisdiction-Admissibility), ICJ Rep. (1984) p. 392, at p. 431, para. 88; Land, Island and Maritime Frontier Dispute Case (El Salvador v. Honduras) (Application of Nicaragua for Permission to Intervene-Judgment), ICJ Rep. (1990) p. 92, at p. 116, para. 56; Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections), ICJ Rep. (1992) p. 240, at pp. 259–261, paras. 50–55.
24. ICJ Rep. (1984) p. 392, at p. 430, para 86.
25. Ibid. p. 431, para. 88.
26. ICJ Rep. (1990) p. 92, at p. 122, para. 73.
27. ICJ Rep. (1992) p. 240, at p. 259, para. 49.
28. Ibid. p. 261, para. 55.
29. Ibid. pp. 301–302 (per Judge Jennings); pp. 326–328 (per Judge Ago); pp. 329–343 (per Judge Schwebel).
30. Ibid. (per Judge Schwebel) p. 331.
31. Art. 59 of the ICJ Statute provides that: ‘The decision of the Court has no binding force except between the parties and in respect of the particular case’. See also ICJ Rep. (1984) p. 392, at p. 431, para. 88; ICJ Rep. (1990) p. 92 at p. 115, para. 54; ICJ Rep. (1992) p. 240, at p. 261, para. 55.
32. See supra, n. 1, (per Judge Ranjeva) pp. 1–4; (per Judge Weeramantry) pp. 12–23. Also see Chinkin, ‘The East Timor Case …’, loc. cit. n. 2, at p. 719.
33. See also supra.
34. ICJ Rep. (1995) p. 90 at p. 102, para. 29.
35. See Chinkin, ‘The East Timor Case …’, loc. cit. n. 2, at p. 721.
36. See ICJ Rep. (1970) p. 3 at paras. 33–34.
37. See Thirlway, H., ‘The Lawand Procedure of the International Court of Justice 1960–1989, Part One’, 60 BYIL (1989) p. 1, at p. 94Google Scholar; Cassese, op. cit. n. 2, at p. 134; de Hoogh, A.J.J., Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (1995) pp. 44, 46.Google Scholar
38. PCIJ Ser. A, No. 1 (1923) p. 15, at p. 20; see also Gray, Ch., Judicial Remedies in International Law, (1987) pp. 211–212.Google Scholar
39. ICJ Rep. (1949) p. 174, at p. 185.
40. ICJ Rep. (1962) p. 319, at p. 327.
42. See Gray, op. cit. n. 38, at p. 212.
43. ICJ Rep. (1962) p. 319, at p. 425 et seq.
44. Ibid.
45. ICJ Rep. (1966) p. 3, at pp. 33–34, para. 44.
46. See I. Brownlie, , Principles of Public International Law, 4th edn. (1990) p. 470.Google Scholar
47. Cf., ICJ Rep. (1966) p. 3, at pp. 252–253 (per Judge Tanaka).
48. Hereinafter referred to as the Namibia case ICJ Rep. (1971) p. 16, para. 126.
49. See Thirlway, loc. cit. n. 77, at pp. 98–99. It could be argued that the best course of action in order to assess Australia's attitude in relation to East Timor would be to have recourse to a political organ of the UN, possibly the Security Council, with a view to provoking a declarationas to the legality or not of Australia's conclusion of the 1989 Treaty with Indonesia. Certainly, if Portugal made such a move, it would dispense with the so-called Monetary Gold rule since the evaluation of the position of Indonesia cannot constitute a prerequisite for the consideration of the matter by a political organ of the UN.
50. See the Publications of the ECHR, Series A, vol. 25, pp. 91–92.
51. See ibid, vol. 28, pp. 19–20.
52. ICL Yearbook 1976 Vol. II, Part Two, pp. 99–100.
53. ILC Yearbook 1985 Vol. II, Part Two, p. 27.
54. Ibid.
55. See Meron, Th., Human Rights and Humanitarian Law as Customary Law (1989) p. 192Google Scholar; De Hoogh, op. cit. n. 37, at p. 46.
56. See Brownlie, op. cit. n. 46, pp. 512–513; Cassese, op. cit. n. 2, at pp. 133–140; De Hoogh, op. cit. n. 36, at p. 48. Cf., Meron, op. cit. n. 55, at p. 194; ‘Erga omnes rights are not necessarily identical with jus cogens rights, however; despite a degree of overlap, the latter set of rights is narrower than the former…’; Henkin, L., International Law: Politics and Values (1995) pp. 216–217.Google Scholar
57. See Henkin, op. cit. n. 56, at p. 39; Brownlie, op. cit. n. 46.
58. See Cassese, op. cit. n. 2, at pp. 134–140. For further bibliography see Ibid. pp. 134–135 fn. 60.
59. See supra, n. 16.
60. ICJ Rep. (1995) p. 90, at pp. 99–100, paras. 21–22. Cf., loc. cit. n. 1, (per Judge Oda) p. 4, para. 6. Contra ibid., (per Judge Weeramantry) p. 28.
61. See Barcelona Traction case, ICJ Rep. (1970) p. 3 at paras. 33–34. Also see Chinkin, ‘The East Timor case …’, loc. cit. n. 2, at p. 721.
62. Supra, n. 1, (per Judge Weeramantry) p. 26; also see ibid., pp. 49, 51–52, 58–60.
63. Judge Weeramantry stated in his dissenting opinion: ‘… To suggest that Indonesia is a necessary party to the adjudication of that breach of obligation by Australia is to hamper the practical application of the erga omnes doctrine … It would mean that Indonesia could protect any country that has dealings with it in regard to East Timor from being impleaded before this Court, by Indonesia itself not consenting to the Court's jurisdiction. In the judicial forum the right erga omnes could to that extent be substantially deprived of its effectiveness … ibid. p. 26. Cf., ibid., (per Judge Ranjeva) supra, n. 1, pp. 3–4.
64. See Cassese, op. cit. n. 2, pp. 172–173, Contra De Hoogh, op. cit. n. 37, pp. 41–42.
65. ICJ Rep. (1963) p. 15, at p. 37. In this case, however, the Court decided against the propriety of rendering a declaratory judgment in view of the termination of the Trusteeship Agreement over the Cameroons. See also the criticism in Brownlie, op. cit. n. 46, p. 472.
66. ICJ Rep. (1966) p. 3, at p. 34, para 48.
68. Oppenheim's International Law, 9th edn. (1992) p. 5Google Scholar; also see Mbaye, K., ‘L'Intérêt pour Agir la Cour Internationalle de Justice’, 209 RCADI (1988-II) pp. 316–318Google Scholar. Cf., Thirlway, loc. cit. n. 37, p. 98; Gray, op. cit. n. 38, pp. 214–215; Harris, D.J., Cases and Materials on International Law, 4th edn. (1991) pp. 465–466.Google Scholar
69. See supra, n. 1 (per Judge Weeramantry) p. 59.
70. Ibid., (per Judge Weeramantry) p. 60. The dissenting Judge reached this conclusion by referring to the general principle of the correlativity of rights and duties: ‘… 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 …’, ibid. p. 54.
71. Op. cit. n. 46, pp. 472–473.
72. See supra, n. 17.
73. Cassese observes that this is ‘… accounted for by political considerations, in particular the strategic importance of Indonesia for the West …’, op. cit. n. 2, p. 227.
74. See Franck, op. cit. n. 2, pp. 195, 198.
75. See 45 UN Yearbook (1991) pp. 798–799; Simma, B., ed., The Charter of the United Nations. A Commentary (1995) p. 929.Google Scholar
76. See the statement made on 19 July 1977 by G.H. Aldrich, the US Deputy Legal Adviser before the Sub-Committee on International Organisations of the US House of Representatives' Committee on International Relations, US Dept. of State Bul. (5 September 1977) p. 326, cited in Cassese, op. cit. n. 2, at p. 227 fn. 31.
77. ‘Netherlands State Practice 1976–1977’, 9 NYIL (1978) pp. 194–195.Google Scholar
78. See ‘Netherlands State Practice 1979–1980’, 12 NYIL (1981) pp. 302–304.Google Scholar
79. House of Commons Debates, 18 September 1991, p. 2310, in ‘Canadian Practice in International Law/Parliamentary Declarations in 1991–1992’, 30 Can. YIL (1992) p. 366.Google Scholar
80. See ‘UK Materials on International Law 1980’, 51 BYIL (1980) pp. 375–376Google Scholar; Lord Trefgarne, the Government Minister, stated in the House of Lords: ‘The United Kingdom therefore voted for the United Nations Security Council's resolutions of 1975 and 1976 which condemned the Indonesian intervention and reaffirmed the right of East Timorese to self-determination …’ See also ‘UK Materials on International Law 1983’, 54 BYIL (1983) p. 405Google Scholar, ‘UK Materials on International Law 1984’, 55 BYIL (1984) pp. 430–431Google Scholar, ‘UK Materials on International Law 1991’, 62 BYIL (1991) pp. 574–575Google Scholar, ‘UK Materials on International Law 1993’, 63 BYIL (1992) pp. 816–817Google Scholar, ‘… The Government do not recognize the incorporation of East Timor into Indonesia …’
81. See ICJ Rep. (1995) p. 90 at pp. 97–98, paras. 17–18; supra, n. 1 (per Judge Weeramantry) p. 48; (per Judge Ad Hoc Skubiszewski) pp. 6–7, 28–29, paras. 25–32, 118.
82. See SCOR 16th year 987th meeting, para. 11.
83. Ibid., paras. 32, 37–39, 44, 46. It was, moreover, argued that the Indian action could not constitute aggression because the illegality of the Portuguese possessions on Indian territory rendered the frontier between India and the Portuguese colonies non-existent and consequently there could be ‘no question of aggression against your own frontier or against your own people’, ibid. para. 46. The Indian representative also relied upon the right of self-defence by arguing that the ‘Charter itself does not completely eschew force in the sence that force can be used in self-defence for the protection of the people of a country, and the people of Goa are as much Indians as the people in any other part of India’, ibid. para. 77.
84. GAOR 15th session, Suppl. No. 16, p. 66.
85. SCOR 16th year, 987th meeting, paras. 75, 80.
86. Ibid. 988th meeting, para. 93.
87. See Wright, Q., ‘The Goa Incident’, 56 AJIL (1962) p.617CrossRefGoogle Scholar; Henkin, L., ‘Force, Intervention and Neutrality in Contemporary International Law’, 57 ASIL Proceedings (1963) p. 153Google Scholar; Crawford, J., The Creation of States in International Law (1979) p. 112Google Scholar; Dugard, J., Recognition and the United Nations (1987) pp. 115–116.Google Scholar
88. Portugal recognized the incorporation of the enclaves into India in 1974. See Harris, D.J., Cases and Materials on International Law, 4th edn. (1991) p. 205.Google Scholar
89. Op. cit. n. 87, p. 113; also see Dugard, op. cit. n. 87, at pp. 116–117.
90. ICJ Rep. (1975) p. 12.
91. SCOR 30th, 1854th meeting, paras. 28–60. Moreover, according to the Moroccan Government self-determination accord ing to GA Res. 1514 (XV) could never be contrary to the unity and territorial integrity of States, ibid. 1849th meeting, paras. 28–60.
92. SC Res. 380 (1975) of 6 November 1975.
93. See Simma, op. cit. n. 75. Cf., 33 UN Yearbook (1976) p. 1117.
94. See Cassese, op. cit. n. 2, at pp. 214–218; Franck, op. cit. n. 2, at pp. 195–197.
95. SCOR 37th year, 2350th meeting, pp. 3–5, 11.
96. Ibid. pp. 7–8; also see Jimenez de Arechaga, E., ‘International Law in the Past Third of the Century’, 159 RCADI (1978-II) p. 107.Google Scholar
97. SCOR 37th year, 2350th meeting, pp. 23 (Guyana), 26 (Jordan), 96 (Togo). Of great interest is the statement made by the Ugandan representative: ‘… Uganda regrets this latest development because we are conscious of the fact that there are similar, though not identical disputes in other parts of the world. It would be a dangerous precedent if the impression were to be given that the use of force is acceptable as a method of settling those disputes …’ ibid. p. 91.
98. SC Res. 502 (1982) of 3 April 1982.
99. Lauterpacht, H., Recognition in International Law (1948) pp. 411–412Google Scholar. Also see Chen, , The International Law of Recognition (1951) pp. 430–433Google Scholar; Patel, , Recognition and the Law of Nations (1959) pp. 11–115Google Scholar. On the practice of States in relation to non-recognition of forcible territorial change prior to 1945 see Langer, , Seizure of Territory, First Greenwood Reprinting (1969)Google Scholar; Brownlie, I., International Law and the Use of Force by States (1963) pp. 410–423Google Scholar. On post-1945 practice see Dugard, op. cit. m. 87, at Ch. 5, p. 80 et seq.
100. See the Note addressed to the Governments of China and Japan by the US Secretary of State Stimson on 7 January 1932, in Whiteman, M.M., Digest of International Law, vol. 5, (1968) pp. 874–875Google Scholar; the non-recognition of ‘Manchukuo’, the puppet State that emerged as the result of the use offeree and occupation of Manchuria by Japan in 1932; the non-recognition of the German annexation of Austria (1938) and Czechoslovakia (1939), the Italian annexation of Albania (1939), the Soviet annexation of the Baltic States (1940). Also see the non-recognition of the Israeli annexation of East Jerusalem (1980) and the Golan Heights (1981), SC Res. 476 (1980) of 30 June 1980, SC Res. 478 (1980) of 20 August 1980, SC Res. 497 (1981) of 17 December 1981; the nonrecognition of the creation of the so-called ‘Turkish Republic of Northern Cyprus’, SC Res. 541 (1983) of 18 November 1983; the non-recognition of the Iraqi annexation of Kuwait. SC Res. 662 (1990) of 9 August 1990.
The duty of non-recognition is established in multilateral treaties, declarations of International Conferences, statements of Governments, the work of the ILC and Resolutions of the UN SC and GA. See Art. 2 Rio Anti-War Treaty 1933 (Saavedra Lamas Pact); Art. 11 Montevideo Convention on the Rights and Duties of States 1933; 5th Principle of Act of Chapultepec 1945; Art. 17 Charter of the Organisation of American States; Bosnia-Herzegovina-Croatia-Yugoslavia: General Framework Agreement For Peace in Bosnia and Herzegovina with Annexes, Paris, 14 December 1995, Annex 4 (Constitution of Bosnia and Herzegovina) Art. 1(1), 35 ILM (1996) p. 118; Art. 11 Draft Declaration of Rights and Duties of States 1949, ILC Yearbook 1949 Vol. II Part II, p. 288; Art. 2(8) of the Draft Code of Offences Against the Peace and Security VII of Mankind, ILC Yearbook 1954 Vol. II Part II, p. 151; Principles III(2) and IV(3) of the Helsinki Final Act 1975, 14 ILM (1975) p. 1292; SC Res. 242 (1967) of 22 November 1967; ‘… inadmissibility of the acquisition of territory by war …’; GA Res. 2625 (XXV), GAOR 25th session, Suppl. No. 28, p. 121; GA Res. 3314 (XIX), GAOR 29th session, Suppl. No. 3, p. 142. The ICJ in Nicaragua v. USA ruled that the above mentioned GA Resolutions are declaratory of customary international law; see ICJ Rep. (1986) p. 14 at pp. 99–100, 103, paras. 188, 195. The duty of non-recognition is also formulated in the Advisory Opinion of the ICJ in the Legal Consequences for States of the Continued Presence of South Africa in Naminia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. (1971) p. 16. Also see Conference on Yugoslavia Arbitration Commission, Opinion No. 3 of 11 January 1992, 31 ILM (1992) p. 1488, at pp. 1499–1500.
101. Viz., the non-recognition of Southern Rhodesia as a State, SC Res. 216 (1965) of 12 November 1965.
102. Viz., the non-recognition of South Africa's ‘Homeland-States’, Transkei, Bophuthatswana, Venda and Ciskei; see SC Res. 402 (1976) of 22 December 1976 and SC Res. 407 (1977) of 25 May 1977 (Transkei); GA Res. 32/105N of 14 December 1977 (Bophuthatswana); Statement of the President of the Security Council on behalf of the Council of 21 September 1979, S/13549 (Venda); Statement of the President of the Security Council on behalf of the Council of 15 December 1981, S/14749 (Ciskei).
103. See Brownlie, op. cit. n. 99, at p. 410.
104. See Crawford, op. cit. n. 87, at pp. 79–84, 120–128; Dugard, op. cit. n. 87, at Ch. 6, p. 123 et seq.
105. Dugard, op. cit. n. 87, at p. 131.
106. Op. cit. n. 87, pp. 105–106. Also see Fawcett, J.E.S., ‘Security Council Resolutions on Rhodesia’, 41 BYIL (1965-1966) p. 102Google Scholar. Cf., Franck, op. cit. n. 2, at Ch. 4, p. 83 et seq.
107. It must be noted that this is the case with the exceptions of Australia, on the one hand, that has recognized de jure the incorporation of the territory in Indonesia and of the UK, on the other, that has refrained from recognising the incorporation of East Timor even as an accomplished fact.
108. See supra, section 4.
109. ICJ Rep. (1990) at p. 104, paras. 30–31. Cf., Namibia case, ICJ Rep. (1971) p. 16, at p. 50; Higgins, R., Problems & Process. International Law and How We Use It (1994) pp. 24–25.Google Scholar
110. See White, N.D., Keeping the Peace (1993) pp. 80–82.Google Scholar
111. ICJ Rep. (1971) p. 16, paras. 111–127. See also Crawford, op. cit. n. 87, at pp. 124–128.
112. ICJ Rep. (1971) p. 16, para. 114.
113. ICJ Rep. (1986) p. 14, at p. 98 para. 186. Ase also Higgins, op. cit. n. 109, at pp. 19–22.
114. Supra, n. 1 (per Judge Ad Hoc Skubiszewski), p. 32, para. 32. See also Jennings, R.Y., The Acquisition of Territory in International Law (1963) p. 61Google Scholar. Moreover, the distinction between recognising the fact of the Indonesian presence in East Timor but not the means by which it was effectded if taken in conjunction with the assertion that Timor is still a non-self-governing territory may be significant in that Indonesian presence is divested of every legality as to its origin. Consequently, the rule of law seems to be upheld until some form of collective recognition is established. See Brownlie, op. cit. n. 99, at pp. 420–421.
115. See supra, n. 1, (per Judge Weeramantry) pp. 48–49.
116. See generally Roberts, A., ‘Prolonged Military Occupation: The Israeli Occupied Territories Since 1967’, 84 AJIL (1990) p. 44.CrossRefGoogle Scholar
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118. See Oppenheim, International Law, Vol. II, ‘War’, 7th edn., Lauterpacht, H., ed., pp. 436–437Google Scholar; Roberts, loc. cit. n. 116, at p. 47.
119. Roberts, ibid.
120. See Stone, J., Legal Controls of International Conflict (1954) p. 697.Google Scholar
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123. ‘UK Materials on International Law 1981’, 52 BYIL (1981) pp. 515–516.Google Scholar
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126. See supra, p. 4.
127. See Cassese, op. cit. n. 1, at p. 230.
