The east timor case (Portugal v. Australia)

International and Comparative Law Quarterly

Volumn 45, Issue 3, 1996, Pages 712-725

  Evans, Malcolm D ^a   Chinkin, Christine ^a  

^a NONE

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EID: 84937274312     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300059455     Document Type: Article

References (90)

1. East Timor {Portugal v. Australia) I.C.J. Rep. 1995, 90 (judgment of 30 June 1995).
2. See generally C. Chinkin, Third Parties in International Law (1993), esp. chap.1.
3. Third parties can request intervention under the ICJ Statute. Arts. 62 and 63. On intervention under Art.62 see Case Concerning the Continental Shelf {Tunisia/Libya Arab Jamahiriya) (application by Malta to intervene) I.C.J. Rep. 1981, 3
4. Case Concerning the Continental Shelf (Libya Arab Jamahiriya/Malta) (application by Italy to intervene) I.C.J. Rep. 1984, 3
5. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (application by Nicaragua to intervene) I.C.J. Rep. 1990. 92.
6. On intervention under Art.63 see Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States) (declaration of intervention) I.C.J. Rep. 1984, 215.
7. The so-called “indispensable third party” rule; see Nicaragua v. United States, idem (jurisdiction and admissibility) I.C.J. Rep. 1984, 392
8. Land, Island and Maritime Frontier Dispute, I.C.J. Rep.
9. Certain Phosphate Lands in Nauru (Nauru v. Australia) (jurisdiction and admissibility) I.C.J. Rep. 1992, 240.
10. Nicaragua's request to intervene in the Land, Island and Maritime Frontier Dispute. I.C.J. Rep., was the first successful request under Art.62.
11. These facts are well known. See e.g. J. Taylor, Indonesia's Forgotten War (1990)
12. J. Ramos-Horta, The Unfinished Saga of East Timor (1987)
13. ICCR and IPJET. International Law and the Question of East Timor (1995), esp. Section One
14. F. De Quadros. “Decolonisation of Portuguese Territories”, in R. Bernhardt (Ed.). Encyclopedia of Public International Law, Vol.10, pp.93–96
15. P. Elliott, “The East Timor Dispute” (1978) 27 I.C.L.Q. 238
16. R. Clark, “The ‘Decolonization’ of East Timor and the United Nations Norms on Self-Determination and Aggression” (1982) 7 Yale J. of World Public Order 2.
17. One of Indonesia's arguments is that the integration was voluntarily accepted by the East Timorese, thus constituting self-determination. As Indonesia was not a party before the ICJ such arguments were not presented for analysis. On the Indonesian perspective see A. Alatas (Minister of Foreign Affairs of Indonesia), “East Timor: Debunking the Myths Around a Process of Decolonisation”, remarks before the members of the National Press Club, Washington DC, 20 Feb. 1992.
18. Since 1975 there have been numerous reports of human rights violations in East Timor, by such non-governmental organisations as Amnesty International. On the Dili massacre of 12 Nov. 1991 see Report of the Special Rapporteur on Torture, Peter Kooijmans, E/CN.4/1992/17/Add.1. 8 Jan. 1992, p.l4.
19. On conditions in East Timor since 1975 see G. Aditjondro, In the Shadow of Mount Ramelau, The Impact of the Occupation of East Timor (1994).
20. The voting for GA Res.3485, The Impact of the Occupation of East Timor, was 72 for. 10 against and 47 abstentions
21. that for GA Res.37/30, The Impact of the Occupation of East Timor, was 50–46–50. After 1982 there was apprehension that a subsequent resolution might not gain the requisite support.
22. On other occasions UN organs have called for non-recognition of sovereignty over territory that is tainted by illegality. E.g. SC Res.2775E(XXVI). 29 Nov. 1971; GA Res.3411D(XXX) 28 Nov. 1975; GA Res 31/6A. 27 Oct. 1976 with respect to non-recognition of the South African Bantustans of Transkei, Bophuthatswana and Venda; SC Res.242,2 Nov. 1967 with respect to territory occupied by Israel in the Six Day War; SC Res 541 (1983) with respect to the proclamation of the Turkish Republic of Northern Cyprus; SC Res.662. 9 Aug. 1990 with respect to Iraq's invasion and occupation of Kuwait. For discussion of the significance of the failure to recommend non-recognition see C. Chinkin, “The Merits of Portugal's Case Against Australia” (1992) 15 New South Wales L.J. 423
23. rep. as “East Timor Moves into the World Court” (1993) 4 E.J.I.L. 206.
24. See G. Nettheim. “International law and International Politics”, in ICCR/IPJET, E.J.I.L. n.6, at p.l81, for an account of responses to the situation in East Timor from the UN Commission on Human Rights, the Special Rapporteur on Torture and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
25. See C. Chinkin, “Australia and East Timor in International Law”, in ICCR/IPJET, E.J.I.L. n.6, at p.269.
26. GA Res.33/39,13 Dec. 1978. The Australian government representative explained: “The text of the Resolution did not reflect a realistic appreciation of the situation in East Timor and no practical purpose was served by the Resolution.” Australian Department of Foreign Affairs. Annual Report 1978 (Australian Government Printing Service, Canberra, 1979) p.30.
27. See further C. Chinkin. “The Law and Ethics of Recognition: Cambodia and Timor”, in P. Keal (Ed.), Ethics and Foreign Policy (1992), p.l90.
28. Agreement (with Indonesia) Establishing Certain Seabed Boundaries, 18 May 1971, 31 Aust.T.S. (1973)
29. Agreement (with Indonesia) Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, 9 Oct. 1972, 32 Aust.T.S. (1973).
30. Simpson cites a telex sent in 1975 by Australia's then Ambassador to Indonesia: “It would seem to me that this Department [Department of Minerals and Energy] might well have an interest in closing the present gap in the agreed sea border and this could be much more readily negotiated with Indonesia than with Portugal or independent Portuguese Timor”: G. Simpson, “Judging the East Timor Dispute: Self-determination at the International Court of Justice” (1994) 17 Hastings I. & Comp. L.R. 323.
31. Treaty between Australia and the Republic of Indonesia on the Zone of Co-operation in an Area between the Indonesian Province of East Timor and Northern Australia, Timor Sea, 11 Dec. 1989, in force 9 Feb. 1991, Aust.T.S. No.9, 1991.
32. Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990
33. Petroleum (Australia-Indonesia Zone of Co-operation) (Consequential Provisions) Act 1990.
34. The right to political and economic self-determination is spelled out as Art.1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted by the General Assembly on 16 Dec. 1966. See also the Resolution on Permanent Sovereignty over Natural Resources, GA Res.1803(XVII).
35. ICJ Statute, Art. 34.
36. As e.g. in the cases of the people of South West Africa and the Saharawi people: Legal Consequences for Slates of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Res.276 (1970) I.C.J. Rep. 1971, 16
37. Western Sahara I.C.J. Rep. 1975, 12.
38. Notably by Judge Morelli, dissenting, in South West Africa (preliminary objections) I.C.J. Rep. 1962, 560.
39. Mavrommatis Palestine Concession P.C.I.J. Ser.A, No.2, 11 (judgment of 13 Aug.)
40. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania I.C.J. Rep. 1950, 74 (adv. op. 30 Mar.)
41. Northern Cameroons I.C.J. Rep. 1963, 27 (order of 2 Dec)
42. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 I.C.J. Rep. 1988, 27, para.35 (adv. op. 26 Apr.).
43. Judge Skubiszewski in para.36 of his dissenting opinion preferred the fuller definition of dispute given by Judge Fitzmaurice, Northern Cameroons, idem, pp.109–110.
44. I.C.J. Rep. 1995, para.22.
45. R. Jennings, “The Judiciary, International and National, and the Development of International Law” (1996) 45 I.C.L.Q. 1,10.
46. Since both Portugal and Australia had made declarations accepting the compulsory jurisdiction of the ICJ under the ICJ Statute. Art.36(2). there was no challenge as such to jurisdiction; Portugal v. Australia, para.1.
47. ICJ Statute, Art.36.
48. Idem, Art.38.
49. UN Charter, Arts.2(3), 33.
50. I.C.J. Rep. 1995, 16 (Judge Weeramantry dissenting).
51. Art.59 states: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”
52. Case of the Monetary Cold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States) (preliminary question) I.C.J. Rep. 1954, 32.
53. The claim was raised by the US in Nicaragua v. United States, I.C.J. Rep. n.4
54. Australia in Nauru v. Australia, I.C.J. Rep. n.4.
55. In the Land, Island and Maritime Frontier Dispute, I.C.J. Rep. n.3, the third-party intervener, Nicaragua, made the claim.
56. Judge Vereshchetin explicitly affirmed the third-party status of the people of East Timor: I.C.J. Rep. 1995 (sep. op. Judge Vereshchetin).
57. I.C.J. Rep. 1995. para.35.
58. Corfu Channel Case (United Kingdom v. Albania) (merits) I.C.J. Rep. 1949, 4.
59. I.C.J. Rep. 1995, 21 (Judge Weeramantry dissenting).
60. Similarly in the Libya/Malta case the ICJ limited its determination of the maritime boundary to the areas outside the interest of the third party. Italy: Case Concerning the Continental Shelf (Libya Arab Jamahiriya/Malta) (merits) I.C.J. Rep. 1985, 3.
61. I.C.J. Rep. 1995, para.21.
62. Military and Paramilitary Activities In and Against Nicaragua I.C.J. Rep. 1984, 431.
63. I.C.J. Rep. 1995, para.29.
64. UN Charter, Art.73.
65. Cf. Namibia (South West Africa) case, UN Charter n.24.
66. On 13 Aug. 1993 the case was discontinued as a consequence of a settlement between Nauru and Australia: Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice Concerning Certain Phosphate Lands in Nauru, 10 Aug. 1993, rep. (1993) 32 I.L.M. 1471.
67. South West Africa Cases (second phase) I.C.J. Rep. 1966, 4.
68. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) I.C.J. Rep. 1992, paras.421–424.
69. I.C.J. Rep. 1995, 17 (Judge Weeramantry dissenting).
70. On the concept of jus cogens see Vienna Convention on the Law of Treaties 1969, U.N.T.S. 18, 232, Arts.53 and 64
71. on the formulation by the ICJ of the concept of obligations owed erga omnes, see Barcelona Traction Light and Power Company Case (Belgium v. Spain) (new application) I.C.J. Rep. 1970, 3, 32 (order of 5 Feb.)
72. see also the work of the International Law Commission on the concept of an international crime of State. Draft Articles on State Responsibility, Art.l9, (1980) 2 Y.B.I.L.C. Pt.II, p.30 and the consequences of the commission of an illegal act.
73. See further Chinkin, Y.B.I.L.C. n.2.
74. I.C.J. Rep. 1995, para.29.
75. H. Mosler. “The International Society as a Legal Community” (1974) 140(IV) Hag. Rec. 17, 34.
76. Barcelona Traction, Hag. Rec. n.52.
77. For a strong criticism of such a hierarchy see P. Weil, “Towards Relative Normativity in International Law?” (1983) 77 A.J.I.L. 413.
78. Potential Indonesian arguments such as its right to territorial integrity were of course not before the ICJ. Yet there is no doubt that the case has consolidated the Indonesian position; see Simpson, A.J.I.L. n.19.
79. I.C.J. Rep. 1995, para.48 (Judge Skubiszewski dissenting).
80. I.C.J. Rep. 1995 (sep. op. Judge Vereshchetin).
81. ICJ Statute, Art.34(2) allows public international organisations to present information to the ICJ in contentious cases; see Chinkin, I.C.J. Rep. n.2, at chap.10.
82. An actio popularis was denied in the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (second phase) I.C.J. Rep. 1966, 4 (judgment of 18 July).
83. I.C.J. Rep. 1995, para.31. See also paras.21, 29 and 37.
84. Idem, para.45 (Judge Skubiszewski dissenting).
85. Idem, para.32.
86. Even within the framework of decolonisation, self-determination could be achieved by other means, including integration or free association with an existing State, provided the decision is made as “the result of a free and voluntary choice by the Peoples of the Territory concerned expressed through informed and democratic processes”: GA Res.1541(XV).
87. Frontier Dispute (Burkina Faso v. Mali) I.C.J. Rep. 1986, 662.
88. Northern Cameroons I.C.J. Rep. 1963, 27.
89. Rejoinder from Australia, 1 July 1993, para.160 (emphasis in the original).
90. I.C.J. Rep. 1995, para.43 (Judge Skubiszewski dissenting).