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Langford, Malcolm --- "East Timor - The World Court Mumbles" [1995] HRightsDef 6; (1995) 4 Human Rights Defender

East Timor - The World Court Mumbles

The International Court of Justice on the 30th June 1995 handed down its decision in the Case Concerning East Timor which Portugal had brought against Australia in 1991.

The court rejected Portugal's claim that Australia had violated international law by signing the Timor Gap treaty with Indonesia. The decision though, was based on a technicality and not the substance of Portugal's claim. The court held that Indonesia's absence from the case (Indonesia does not accept the court's jurisdiction) prevented them from making a decision.

The Court's decision
The court's judgment was delivered by only ten of the sixteen judges. Four other judges agreed with its conclusions but gave separate opinions while the remaining judges, Weeramantry and Skubiszewski, dissented. The court's judgment is very short and as one academic commented to me: "It was even an insult to the Australians who had put so much effort into the preparation of the case."

After finding that a dispute existed the court addressed the most contentious question: whether the dispute could be decided in Indonesia's absence? In other words, was Indonesia an 'indispensable third party'?

The ICJ in the 1954 Monetary Gold case held that the court could not proceed in a case if another State's legal interests formed the "very subject matter of the decision." Portugal claimed Australia violated international law by signing the treaty which recognises Indonesian sovereignty over East Timor which is contrary to Portugal's status as Administering Power and the East Timorese right to self-determination. Australia contended though that Indonesia's legal interests would be the "very subject matter of the decision" since the court would have to determine the legality of Indonesia's occupation.

The court agreed with Australia's argument that Indonesia was an indispensable third party. The judgment makes brief reference to Portugal's argument that only Australia's actions were relevant: that is Australia is obliged to exclusively negotiate with Portugal since the UN continues to classify East Timor as a Non-Self- Governing Territory and Portugal as the Administering Power.

However the court, with no reasoning, besides observing an Australian counter-argument that the power may have passed to Indonesia, rejected this argument. They further rejected the argument that the court could solely rely upon resolutions passed by the Security Council and General Assembly which condemned Indonesia's occupation of East Timor. They concluded that the resolutions do not intend to create an obligation for States to exclusively treat with Portugal in respect of the East Timor continental shelf. Alternatively, they doubted whether these resolutions reflected the views of States. States had signed treaties with Indonesia but did not include any reservations with respect to East Timor.

Further, they noted that when Portugal brought the Treaty to the General Assembly and Security Council in 1989 no action was taken by either organ.

Critique
The court's judgment suffers a number of deficiencies with the lack of reasoning being the most significant. This deprives the judgment of much of its legitimacy and makes it difficult to evaluate.

Further, the few reasons given are unsatisfactory, particularly those given for not relying on General Assembly and Security Council resolutions. Judge Weeramantry in his dissenting opinion notes that other resolutions made in similar situations, for example the 1960 Belgium Congo crisis, did not expressly create obligations but were interpreted as creating certain obligations.

The failure of some States in signing treaties to make reservations with respect to East Timor may not be significant since these acts could, like Australia's action, violate international law. Indeed, in the Nicaragua case the court held that contrary acts could actually affirm and not negative the existence of a customary rule of international law. Furthermore, the failure of the UN organs to take action after Portugal's complaint is not necessarily significant: the position of the United Nations after nine resolutions is fairly clear.

The court also failed to examine to consider many other arguments that would lead to an alternative finding. These are addressed by Judge Weeramantry. He examined previous cases and found that this case was closer to the Nauru and Corfu Channel cases, as opposed to the Monetary Gold case, where the indispensable third party argument was rejected.

He further argued that the court should be cautious in applying the 'indispensable third party' rule as most disputes involve the legal interests of other States. This cautiousness, he argued, is justified by the rules of the ICJ which allow Indonesia to intervene in the proceedings and bind only Australia and Portugal to the court's decision.

Implications of the decision
The decision has brought some unfortunate consequences. It downplays the significance of the UN resolutions and so gives some legitimacy to Indonesia's position and support to Australia's policy of recognising Indonesian sovereignty over East Timor.

Secondly, combined with the Australian High Court's decision to reject the claim that the Australian legislation was invalid, legal remedies appear to be exhausted. Thirdly, the East Timorese will be deprived by Indonesia of their natural resources as Australia will continue with the Treaty.

There are however two glimmers of hope in the judgment. First, as Jose Ramos-Horta pointed out, the court acknowledged Australia's recognition that the people of East Timor had the right to self-determination. Secondly the court found that the right to self-determination is an erga omnes right.

This means that each State has a duty to uphold the right and a legal interest in compliance by other States with the right. Therefore a State could bring an action against another State, provided it accepted the court's jurisdiction, for violating a people's right to self-determination. For example Portugal could bring a case against New Zealand or Australia for denying the right of self-determination to their indigenous peoples. This would be interesting as no international legal forum has considered self-determination outside the colonial context.

This erga omnes right however, is no comfort for the East Timorese as Indonesia does not accept international dispute settlement procedures. The strategies for the East Timor now remain entirely political.

Malcolm Langford


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