Portugal Vs Australia

FACTS

Portugal administered East Timor as a non-self-governing territory under United Nations Chapter XI. On 27th August 1975, due to internal disturbances caused by factions calling for self-determination, Portugal withdrew from East Timor. Soon after its departure on 7th of December 1975, Indonesia invaded and occupied East Timor; and in 1976 East Timor's “People Assembly” formally sought to be integrated into Indonesia as part of its territorial dominion. Later, on 20th of January 1978, Australia acknowledged de facto Indonesia's annexation of East Timor which was then followed by de jure recognition in the following year.

A number of meetings between Portugal and Australia took place to resolve the issue in relation to undefined continental shelf between Indonesia and Australian known as the 'Timor Gap'. The failure to resolve the matter through talk between the two countries resulted in a treaty between the two countries for exploration and exploitation of natural resources around the Timor Sea seabed known as the ‘Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia.' [1]

ISSUE

Portugal:

* Determination of the objectivity of the conduct of Australia in entering into a treaty with Indonesia over the continental shelf.

Australia:

* Object to the jurisdiction of International Court of Justice and admissibility of the application;

* determination of the lawfulness or otherwise of Indonesia's entry and continuing administration of East Timor;

* Whether the treaty over the continental shelf between Australia and Indonesia was lawful or not.

IDENTIFICATION / QUALIFICATION

This is a violation of East Timor's right to Self-determination. The United Nations Charter has recognized the principle of self-determination, which is one of the fundamental principles of modern international law.

This is a violation of East Timor's right of Permanent Sovereignty over Natural Resources as laid out by General Assembly Resolution 1803 (XVII).

There is an issue regarding International Court of Justices Jurisdiction to adjudicate on legal dispute between Portugal and Australia. Article 35, paragraph 1, of the Statute of the International Court of Justice provides that the Court shall be open to the States parties to the Statute.

PRINCIPLE OF INTRERNATIONAL LAW

Principle of Self-Determination

This is the issue of principle of self-determination, which literally means the right to control one's own destiny. By virtue of the principle of equal rights and self-determination of people enshrined in the Charter of the United Nations, all people have the right to determine, without external interference, their political statute and to pursue their economic, social and cultural development. The International Covenant on Civil and Political Rights, Part I, Article 1, Paragraph established that ‘All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.'[2]

Self-determination has been established a principle of customary international law as seen in case law of Western Sahara[3] where the court stated that right of people to self-determination is now a right of erga omnes.

Portugal:

Portugal's concern is that Australia has acted unlawfully by infringing the right of the people of East Timor to self - determination. The argument on behalf of Portugal rises from the issue that Australia had negotiated and concluded the 1989 ‘Timor Gap Treaty' and by commencing the performance of the Treaty, took measures under its domestic law for the application of the Treaty, continuing negotiation with Indonesia to infringe the rights of East Timor. The objective conduct of Australia is an exclusive concern for Portugal, which is distinguishable from any queries relating to the lawfulness of the conduct of Indonesia. Under the Prescription method, there has been no encroachment of East Timor's sovereignty, since it was colonised by Portugal in the 16th Century. Thus, resulting in Portugal obtaining good title to East Timor and the treaty between Indonesia and Australia has in fact breached the rights of Portugal as the administering power, disregarding the Security Council Resolutions 384 and 389. Security Council Resolutions 384 recognized the right of the people of East Timor to self-determination. Security Council Resolutions 389 subsequently reaffirmed the right of the people of East Timor passed earlier in 384 and ordered all states involved to respect the territorial integrity of East Timor.

The withdrawal of Portugal from East Timor as an administrator was to facilitate East Timorese rights to Self Determination. To add, Portugal had not officially relinquished the responsibility bestowed upon it as an administrator of East Timor through UN mandate.

Australia, through de facto and de jure recognition of Indonesia's forced annexation of East Timor failed to consider erga omnes obligations of self-determination which has become universal and undeniable interest of East Timor. Furthermore, this action has further legitimised forced occupation of another territory. In trying to obtain a favourable term for the Timor Gap Treaty with Indonesia, Australia has failed in recognising the rights of the people of East Timor to self-determination.

Australia:

On the issue of ‘Self Determination', the people of East Timor had exercised this when the ‘People's Assembly' formally requested to be integrated into Indonesia as its 47th province with the latter maintaining effective control and exercising sovereignty over the ‘Non- Self- Governing- Territory' as recognized and declared by the ICJ in its non-statement.

Portugal had lost its status as administering power of East Timor when it withdrew its troops and administration from the island due to its inability to contain the insurgency by the separatist in 1975.

Besides, the General Assembly as early as 1973 had stripped Portugal of any general right to represent its various overseas territories[4] a decision General assembly never attempted to go back on before Dec. 1975 when the issue of East Timor was tabled before the Assembly and the Security Council.

It will be interesting to note that even UN Security council resolution 389 (1976); General Assembly resolutions 31/53 (Dec.1976); 32/34 (Nov.1977) and 33/39 (Dec. 1978) all undermine the status of Portugal as administering power in East Timor by not referring to it as such.

Furthermore, no specific authorization in the like of which was accorded the United Kingdom by the UN General Assembly and the Security Council resolutions 217 (1965); 221 (1966) and 328(1973)[5] to bring proceedings as an absent administering power against Ian Smith's led apartheid government of Southern Rhodesia was granted to Portugal. To stress the status of the United Kingdom as an administering power, even in absentia, these resolutions point to it to take all effective measures to bring about the conditions necessary to enable the people of the then Southern Rhodesia now Zimbabwe to exercise freely and fully their right to self-determination and independence.

Whereas, most resolutions of the UN General assembly and the Security Council prior to 1980 avoided referring to Portugal as administering power of East Timor; and when they did Portugal was always urged to co-operate with special committee set up to ensure the realisation of the right to self-determination of the Timorese People. Furthermore, the provisions of resolution 36/50 of Nov. 1981 did not change the status of Portugal significantly, as it also urged it to co-operate with other parties namely, the representatives of East Timor and Indonesia to guarantee East-Timor right to self-determination.

All these factors indicate, that even the UN, did not recognize Portugal as an effective administering power over East Timor. Compare to the recognition and rights given to United Kingdom in many resolutions of the General Assembly and the Security Council to take all effective measures possible to liberate the people of Southern Rhodesia from the jaw of the minority ruled of Ian Smith.

If the United Nations is totally against any state regarding any violation of international rule or principles, it usually takes a formal position by condemning such act in strong terms and is immediately followed by a rule-of-non-recognition. However, since occupation of East Timor the UN took no such steps. Neither did it condemn the treaty between Australia and Indonesia over the ‘Continental Shelf', an indication that the occupation was in order and confirmation of Indonesia as a legitimate administering power of East Timor.

Besides, the resolutions adopted between1976-82 could not secure consensus of the UN member states on East Timor issue rather more states accorded recognition to the position of Indonesia as an administering power of East Timor.

Accordingly, Indonesia had legitimate standing for negotiating treaty on behalf of East Timor. Consequently, Australia had a legitimate standing under international law in negotiating and concluding a treaty with a sovereign state of Indonesia that is in effective control of East Timor.
Furthermore, East Timor was not a state but a ‘non-self-governing-territory' and consequently does not have the capacity to negotiate a treaty since it was under the effective control of a sovereign state of Indonesia.

Principle of Permanent Sovereignty over Natural Resources[6]

The ‘East Timor Treaty violated the General Assembly resolution 1803 (XVII) which is based on a number of previous UN resolutions. This resolution saw the establishment of the Commission on permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination. Number of issues were considered when this resolution was drafted, some of which include;

* The resolution is to ‘encourage international co-operation in the economic development of developing countries'.

* To establish the sovereign right of every State to dispose of its wealth and its natural resources should be respected;

* it was based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States;

* desirability to promote international co-operation for the economic development of developing countries, and that economic and financial agreements between the developed and the developing countries must be based on the principles of equality and of the right of peoples and nations to self-determination and;

* particular importance of promoting the economic development of developing countries and securing their economic independence was to be given.

This above charter, although not exhaustive, provides the fundamental principle of ‘Permanent sovereignty over natural resources' and the “The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.”.

Portugal:

Through creation of the ‘Timor Gap Treaty' with Indonesia, Australia has infringed on East Timor's rights of Permanent Sovereignty over Natural Resources, a fundamental principle of self-determination. Australia had denied certain rights of Timorese laid out in this charter. Firstly, under paragraph (1), the treaty has denied Timorese the rights of 'sovereignty over their natural wealth and resources' and failed to provide for the 'interests of their national development' and 'well being' of the Timorese. Secondly, under paragraph (2), the Timorese were not part to this treaty as a nation, therefore, 'exploration, development and disposition' of natural resources were not 'in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable'. Thirdly, under paragraph (5), Australia failed to give 'mutual respect' to Timorese 'based on their sovereign equality' as a nation seeking self-determination. Fourthly, under paragraph (6), the co-operation between Australia has failed to seek further development of East Timor based on 'respect for their sovereignty over their natural wealth and resources'. Finally, under paragraph (7), Australia has violated rights 'over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace'.[7]

Australia:

Australia respects the right of Indonesia as a sovereign state with unreserved right of control over its natural resources and will abide by the treaty it entered into with it in line with the principle of ‘Pacta Sunt Servanda'[8]. To do otherwise can result in Indonesia taking a legal proceeding against Australia for not keeping to its obligations in breach of Art.59 of the Statute. Therefore, Portugal's proceedings regarding ‘Continental Shelf' treaty is tantamount to interfering in the internal affairs of Indonesia in violation of Art 2 (7)[9] of the UN charter.

In addition, this is an attempt to dictate to Australia, a sovereign state what treaty it could or could not undertake; which is a gross violation of international principle of sovereignty and non-interference. Portugal cannot claim to be bringing this proceeding based on international public service, as there is no general principle of international law that confer such principle on any state. It is a well-established decision that for a state to have the right to bring proceedings before ICJ for determination it must be able to show that it has a legal interest regarding the contentious issue[10]. Consequently, Portugal had breached its obligations under international law to respect the right of other state to sovereignty and control over their territories and natural resources.

The Principle of Jurisdiction

The International Court of Justice acts as a world court. The Court has a dual jurisdiction: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the UN.

The very basic essence of sovereignty is existence of a state as an international entity where the state has authority and power over all property and persons within its territory. No external powers, including the United Nation, under Charter 2 (7) can enforce jurisdiction over a sovereign state, without its approval, exception being cases on issues related to Human rights.

Therefore, a fundamental principle of its International Court of Justice's (PCIJ) is that it cannot decide a dispute between States without the consent of those States to its jurisdiction[11]. This principle, reaffirmed in the Judgment given by the Court in the case concerning Monetary Gold[12] case and confirmed in several of its subsequent decisions.

The PCIJ in the case law of Lotus[13] stated that ‘the first and foremost restriction imposed by imposed by International law upon a state is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another state'. To do so, it must have be expressly permitted by the state in concern. The jurisdiction of a state within its own territory is absolute.

Portugal:

Portugal believes that as an original member state of the United Nation, under Article 93, Paragraph 1, Australia is in no position to reject jurisdiction of International Court of Justice to adjudicate in legal issues arising between the two countries due to ‘Timor Gap Treaty'. Article 35, paragraph 1, of the Statute provides that the Court shall be open to the States parties to the Statute.[14]

Portugal had never relinquished its administering power for East Timor, Australia had the opportunity to create treaty with Portugal on Timor Gap but failed to do so.

This implies that Indonesia is under no obligation to accept the jurisdiction of PCIJ under International Law.

Australia:

Following the provisions of Art 36(2)ICJ[15] statutes, a party who has not consented to the jurisdiction of court in a proceedings cannot be compelled to make a representation. Therefore, Australia objected to the jurisdiction of the ICJ because the substantial issue is not between Portugal and Australia regarding ‘Zone of Co-operation' treaty of 1989.If any state, whatsoever, has to move proceedings against Australia concerning this issue such a state will be Indonesia, which unfortunately had not consented to the proceedings.

Even if Australia accepts the court jurisdiction under Art 36(2) of the ICJ, this does not necessarily confer on Portugal a legal right to bring proceedings on any subject of its choosing against Australia as stated by the ICJ in South West African case[16].

Therefore, ICJ could not deliberate on the application brought by Portugal against Australia, without firstly establish whether the treaty between Indonesia and Australia was lawful as was established by the court[17] in the case of ‘Monetary Gold'(1954) brought by Italy against United States, France, United Kingdom and Northern Ireland. Where the court held that in the absence of the consent of Albania, it was not authorized to judge on Italy's claim against Albania and; furthermore, the proceedings brought by Italy could be addressed if only the issue with Albania had been in favour of Italy. In the first instance, the treaty was entered into by two sovereign states Australia and Indonesia on behalf of East Timor ,which is the latter's 47th province following formal request in 1976 by the East- Timor's ‘People Assembly' to be integrated into Indonesia[18]. Besides, Indonesia maintained an effective occupation of East Timor in accordance with UN resolutions 1541[19]& 2465[20]; and therefore exerted control and accordingly can negotiate treaties on their behalf.
On the other hand, if the decision in the case of ‘Island of Palmas'[21] between the United States and the Netherlands could be applied, the title hold by Portugal is ambiguous, this is also noted in the decision of ICJ in this case of Portugal v Australia[22]. Furthermore, the fact that another sovereign, which in this case is Indonesia, had begun to exercise continuous and actual sovereignty[23] over Indonesia after the exit of Portugal meant that she does not have standing under International law to bring proceedings against the legitimate conduct of two sovereign states of Australia and Indonesia.

Contrary to the claim of Portugal, therefore, Australia had not acted unlawfully nor breached any obligations in international law; nor infringed the rights of the people of East Timor to self-determination as result of the treaty with Indonesia.

Accordingly, Indonesia had legitimate standing for negotiating treaty on behalf of the ‘non-self- governing-territories' of East Timor.

RECOMENDATION

Portugal's Recommendations

Portugal therefore recommends the Court rule that;

1. The Court's judgment should establish that, the Territory of East Timor remains a non-self governing territory and its people have the right to self-determination.

2. Australia to accept the treaty violated its obligation to respect Portugal's status as an administering Power of East Timor;

3. Australia has infringed and continues to infringe right of the people of East Timor to self-determination;

4. Australia has violated erga onmes obligations;

5. To request that Australia Rescind on the ‘Timor Gap Treaty';

6. Australia to accept East Timor's right to permanent sovereignty over its wealth and natural resources.

7. United Nation, through Security Council Resolutions, to establish the advisory opinion stated in Legal consequences for state of continued presence of South Africa and Namibia that occupation is contrary to principle of self-determination and sovereignty.

Australia's Recommendations

1. In light of the facts of this case, it is recommended that:

2. If any state is bringing proceedings, especially concerning colonies and territories before ICJ, it must be in relations to a colony or territories still under its administration; otherwise this would amount to wasting the valuable time and resources of the court that would have been put to use in more pressing and genuine cases;

3. As a matter of necessity, such application should be presented with approval of the people of such colonies or territories through a legitimate means prescribed by the UN Charter;

4. A state should only bring proceedings where its rights and obligations under international law are affected;

5. A state should not bring proceedings challenging the legitimate rights of other states to enter into treaties stemming from its domestic and national needs and legitimate expectations of its people; as this could lead to build up of tensions that could degenerate into conflict;

6. No state under international system should assume the role of performing service in the interest of international public that call to question legitimate rights to sovereignty of other states; as this tend to defeat the very essence of the basic rights of states i.e rights to sovereignty and principle of non-interference;

7. In future, in order to make issues clear UNSC should be decisive and avoid ambiguity in their resolutions to prevent the possibility of different parties giving variant interpretations to their stand. Thus, while resolution 384 did not condemn the actions of Indonesia for the occupation of East Timor; It nevertheless recognized East Timor's right to ‘Self Determination' as ‘Non-Self-Governing-Territory'; and at the same time expressed dismay at Portugal's inability to administer East Timor effectively under chapter XI of the charter. This equivocal expressions by the resolution allow states to play around international laws and principles at the expense of the people of East Timor;

Conclusion

Portugal had not officially relinquished its powers over East Timor, withdrawal of Portugal from East Timor, signalled the call for self-determination by the East Timorese. East Timor remained a non-self governing territory until force occupation by Indonesia. Portugal reiterated that East Timor's call for self-determination arose from UN Charters and that it needed to be respected. This treaty by Australia with Indonesia had also denied sovereignty over natural resources to people East Timor.

On the other hand, Portugal is meddling in the internal affairs of Indonesia because as at the time when the treaty of ‘Continental Shelf' was entered into by Australia and Indonesia, Portugal had effectively withdrawn its control and administration over

EastTimor. Indonesia, had therefore maintained effective control of East Timor firstly through effective occupation and the subsequent request by the ‘Peoples Assembly', a representative body of East Timor to be integrated into Indonesia as its 47th province.

Furthermore, it would be a violation of the Art 36 (1) to bring proceedings where a state had not consented to the jurisdiction of ICJ in the subject matter. Therefore, the issue at stake is not with Australia but between Portugal and Indonesia. Portugal cannot dictate to two sovereign states that had legitimately entered into a treaty that such conduct was not valid.

http://www.icj-cij.org/docket/files/84/6837.pdf

http://www.icj-cij.org/docket/files/84/6841.pdf

Bibliography

Books

M Shaw, 6th edition, International Law, Cambridge University Press

V Low, (2007), International Law, Oxford University Press

M Dixon, 4th Edition, Textbook on International Law, Blackstone Press Limited

M Akehurst, 7th Edition (1997), Akehurst's Modern Introduction to International Law, Routledge

Internet & Other Sources

http://www.austlii.edu.au/au/other/dfat/treaties/1991/9.html

http://www2.ohchr.org/english/law/ccpr.htm

http://www2.ohchr.org/english/law/resources.htm

http://www2.ohchr.org/english/law/resources.htm

http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2

http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=1&sp3=a

http://www.icj-cij.org/docket/files/19/4763.pdf

http:www.murdoch.Edu.Au/elaw/indices/author/291.html

http://www.icj-cij.org/docket/files/84/6837.pdf

http://www.haguejusticeportal.net/eCache/DEF/6/142.html

http://www.haguejusticeportal.net/eCache/DEF/6/142.html

Public International Law LAW009-2 - Team 5 9 / 19

Atiqul Haque, Hakeem Agboola, Mohammad Hussain, Mustapha Masha, Solman Choudhury

[1] http://www.austlii.edu.au/au/other/dfat/treaties/1991/9.html

[2] http://www2.ohchr.org/english/law/ccpr.htm

[3] Western Sahara 1975 WL 5 (ICJ 1975)

[4] UN General Assembly Resolutions 3181(XXVIII) & 3113 (XXVIII)

[5] ICJ, Counter Memorial of the government of Australia,
http://www.icj-cij.org/docket/files/84/6837.pdf

[6] http://www2.ohchr.org/english/law/resources.htm

[7] http://www2.ohchr.org/english/law/resources.htm

[8] Art 20 ‘A state is bound to carry out in good faith the obligation which it had assumed by the treaty'

[9] ‘ Nothing contained in the present charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter; but the principle shall not prejudice the application of enforcement measures under chapter VII'

[10] (ICJ Report 1966, PG. 42)

[11] http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2

[12] Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States)1954,WL 6 (I.C.J. 1954)

[13] LOTUS Case (1972) PCIJ Ser. A No. 10

[14] http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=1&sp3=a

[15] “The states parties to the present statute may at any time declare that they recognize as compulsory ipso-facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the court in all legal disputes concerning...”

[16]( ICJ Reports 1966, PG. 42)

[17] http://www.icj-cij.org/docket/files/19/4763.pdf

[18] ‘The case Concerning East Timor & Self- Determination', www.murdoch.Edu.Au/elaw/indices/author/291.html

[19] (1960), UN General Assembly's proclamation, defining: ‘free association with an independent state', ‘integration into an independent state', or ‘independence as the three legitimate options of full self-government'

[20] (1968), (xxiii), ‘implementation of the declaration on the granting of independence to colonial countries and peoples'.

[21] (Netherland v USA) 1928

[22] Portugal v Australia (Timor Gap) 1992 ‘that it cannot be inferred from the sole fact that a no of resolutions of the General assembly and security Council refer to Portugal as an administering power of East Timor that they intended to establish an obligation on third state to treat exclusively with Portugal as regards ‘Continental Shelf' of East Timor without prejudice to the question of whether the resolution under discussion could be binding in nature............'

[23] ‘Island of Palmas' case (Netherland v USA) 1928, http://www.haguejusticeportal.net/eCache/DEF/6/142.html