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Naldi, Gino J --- "The East Timor Case and the Role of the International Court of Justice in the Evolution of the Right of Peoples to Self-determination" [1999] AUJlHRights 4; (1999) 5(1) Australian Journal of Human Rights 106

The East Timor case and the role of the International Court of Justice in the evolution of the right of peoples to self-determination

Gino Naldi [*]


Introduction

The right of self-determination occupies a controversial place in the corpus of international law. It can be considered a vehicle for justice that satisfies the aspirations for independence and statehood of national minorities and colonial and oppressed peoples, a means of promoting democracy, good governance and pluralism within a State. Alternatively, it constitutes a threat to the current world order. Originally conceived in the eighteenth and nineteenth centuries as a political precept sustaining democracy and liberty, both internally and externally, it redrew the map of Europe after the First World War.[1] The emergence of the modern principle of self-determination in the latter half of this century has probably presented the international community with one of the most challenging tests to the preservation of the approved political and legal order.[2] Among other things, it has become synonymous with de-colonisation in the post-Second World War era, providing legitimacy to the struggle for independence of colonial countries and peoples.[3] In contemporary times it has been hijacked by every national minority or ethnic group with a perceived grievance, real or otherwise, who have seemingly transformed it into a scourge, fostering instability as it is increasingly invoked to legitimise separatism or secession, regardless of whether the criteria of statehood, and crucially the viability of the entity, can be met.[4] The international community is experiencing a period of uncertainty as chauvinistic nationalism appears to gain the ascendancy, bringing in its wake unwelcome scenes of brutality long thought vanquished. The quest for ethnically homogeneous entities, as in the Balkans, breeds intolerance and xenophobia and is inimical to the liberal democratic tradition which emphasises pluralism, tolerance and respect for fundamental human rights and freedoms. It cannot therefore be doubted that self-determination in modern international law is surrounded by controversy, accentuated by a lack of consensus over its scope and content.[5]

The right of peoples to self-determination can be found in numerous authoritative international documents, perhaps the most noteworthy being the UN Charter, specifically Articles 1(2), 55 and 56 thereof, Article 1 of the International Covenants on Human Rights 1966,[6] para 2 of the Vienna Declaration and Programme of Action,[7] Principle VIII of the Helsinki Final Act,[8] Article 20 of the African Charter of Human and Peoples Rights 1981,[9] and General Assembly Resolutions 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples, and 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations.[10] \tIt has additionally been endorsed by the International Court of Justice (ICJ) in a number of cases.[11]

It can be said at a general level that self-determination confers on peoples the right to determine their own destiny. However, it is important to observe that the self-determination of peoples has acquired two different aspects.[12] In its internal dimension it allows a people to determine its own form of economic, cultural and social development, free from outside interference. Moreover, it has a human rights component, based on the principle of equal rights, which requires governments to represent the whole population without distinction.[13] In its external dimension it maintains that all peoples are entitled to choose their own political status and is best exemplified by the freedom from colonialism and alien domination.[14] The purpose of this article is to examine the most recent pronouncements of the ICJ on the right of peoples to self-determination as enunciated in the East Timor Case.[15] In so doing, the evolution of this right through the ICJ's jurisprudence shall be traced.

Current status of self-determination -- a legal right

It now seems to be universally accepted that self-determination is a norm of customary international law, at the very least governing the colonial or neo-\tcolonial context, often described as external self-determination.[16] The jurisprudence of the ICJ clearly proclaims external self-determination to be so and leaves no room for doubt.[17] Indeed, the ICJ has consistently maintained this position for over twenty-five years.

The starting point is the Namibia Case in 1971 where, in an oft cited passage, the ICJ stated that:

the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them ... Thus it clearly embraced territories under a colonial regime.[18]

Given the controversy at the time surrounding the nature of self-determination and the scepticism expressed by a number of States and certain jurists as to its normative effect,[19] it is regrettable that the ICJ did not provide a detailed and reasoned justification for this bold assertion. Whereas the ICJ hinted at the sources of international law it did not consider it necessary to recapitulate in full the authorities supportive of the emergence of the right. Although the ICJ sought to rely upon the UN Charter and Resolution 1514 (XV) and developments in international society over a number of years, the failure to explain adequately how this principle of international law came about seems to be a weakness of the judgement and may have prolonged the debate over its status.[20] In his separate opinion, however, Judge Ammoun made a passionate speech supporting, inter alia, the right of the Namibian people to self-determination. He did seek to provide an account as to how the principle of self-determination could have evolved. He was of the view that the practice of states in de-colonising their colonial territories had become so widespread, endorsed furthermore by the UN Charter and numerous UN declarations and resolutions, as to have become a general principle of customary international law.21

In the Western Sahara Case in 1975[22] there was fuller discussion of the subject, in particular with regard to its scope and implementation, but there were still lacunae. The ICJ explained that it was required to consider the applicable principles governing the decolonization policy of the General Assembly as they were part of the framework of the questions put to it by that organ on the nature, if any, of the territorial ties of the Western Sahara with neighbouring States. It stated that the principle of self-determination is enshrined in Articles 1(2), 55 and 56 of the UN Charter.[23] The ICJ stated further that Resolution 1514 (XV), which implemented the relevant UN Charter provisions, enunciated the principle of self-determination as a right of peoples and that its purpose was to bring all colonial situations to a speedy conclusion.[24] It also seems that all the judges were agreed that self-determination was a binding principle of international law, so that in his separate opinion, Judge Dillard was able to conclude that `the pronouncements of the Court thus indicate that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations'.[25] Nevertheless, the observation has been made that none of the judges appeared to indicate with sufficient clarity how it had become so. A criticism similar to that of the Namibia Case could therefore be made.[26] Such adverse comment may, however, appear unduly conservative and legalistic. It needs to be recalled that when called upon to interpret the UN Charter as the constitution of an international organisation the ICJ has adopted a teleological or purposive approach which allows the aims and purposes of the organisation to be achieved in the contemporary context even if they are not provided for expressly.[27] Indeed, the ICJ relied on the teleological rule of treaty interpretation in the Namibia Case to support its view that the principle of self-determination was derived from the UN Charter.[28]

It can thus be observed that by this time the ICJ was clearly of the opinion that the principle of self-determination had crystallised into a rule of law governing the policy of decolonization. Consequently, in the Frontier Dispute Case which concerned the demarcation of the boundary between two African States, Mali and Burkina Faso, the Chamber of the ICJ, in examining the relevance of the principle of uti possidetis and its relationship with that of self-determination, assumed that self-determination was a legal right.29

It can be postulated that the ICJ has played a significant role in the development of self-determination as part of positive international law. Its dicta records its transition from a general principle of international law as a broad and ill-defined norm, requiring the prompt demise of colonialism, to a legal right of peoples establishing principles governing the process of decolonization.[30] However, the contribution of the ICJ may be considered one-dimensional since it has been limited to considering issues regarding decolonization and alien domination whereas, as has been observed, self-determination has evolved beyond colonialism to acquire an ongoing human rights aspect.[31] Nevertheless, without the ICJ's invaluable contribution, the acceptance of external self-determination as positive international law would undoubtedly have proved more problematic. It is not surprising to observe therefore, that in its judgement on the East Timor Case the ICJ took the opportunity to reassert its importance.32

The East Timor Case

The case has its origins in the continuing dispute between Portugal, in its capacity as the administering power of a non-self-governing territory, and Indonesia over East Timor, a Portuguese colony since the sixteenth century. \tOn 7 December 1975 Indonesia invaded East Timor and subsequently annexed it in July 1976.[33] This followed Portugal's acceptance in 1974 of East Timor as a non-self-governing territory under Chapter XI of the Charter. Following disturbances in East Timor, the Portuguese authorities started withdrawing from East Timor in August 1975. In November of that year FRETILIN, an indigenous party committed to independence for East Timor, declared the independence of East Timor. Other groups, however, sought accommodation with Indonesia, including integration. The immediate UN response to the invasion was to deplore Indonesia's actions and to call upon it to withdraw its forces from the Territory, and to reaffirm the inalienable right of the people of East Timor to self-determination and independence, and the legitimacy of their struggle to achieve that right.[34] In addition, the integration with Indonesia went largely unrecognised.[35] Subsequently the UN resolutions became more muted and ceased in 1982, although the question of East Timor remains on the agenda of the Decolonization Committee[36] and other UN sub-organs.[37] The military occupation of East Timor continues despite opposition by the people.

In 1991 Portugal instituted proceedings against Australia before the ICJ objecting to a treaty between Australia and Indonesia on the exploitation of the so-called `Timor Gap',[38] an area of the continental shelf between Australia and East Timor, claiming that Australia was thereby in breach of the right of the people of East Timor to self-determination and other related rights, such as the right to permanent sovereignty over natural resources; that Australia was infringing Portugal's rights as the administering power; and that Australia had therefore incurred international responsibility towards Portugal and the people of East Timor.[39] However, the ICJ declined jurisdiction to entertain the action because to have done so would have meant ruling on whether Indonesia, which had not accepted the jurisdiction of the ICJ, could have lawfully concluded the treaty. Indonesia's rights and obligations would consequently constitute the very subject matter of the case.[40] Such a judgement would have been contrary to the well-established principle that the ICJ can only exercise jurisdiction over a state with its consent.41

As has been mentioned, Portugal's case was that in concluding the treaty and giving effect to it, Australia had violated the right of the people of East Timor to self-determination and violated Portugal's rights as the administering power of East Timor. Both parties, it should be observed, accepted the existence of the principle of self-determination.[42] While the ICJ found itself unable to rule on the merits, it nevertheless emphasised the continued importance of the right to self-determination. The ICJ expressed the view that:

Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognised by the United Nations Charter and in the jurisprudence of the Court ...; it is one of the essential principles of contemporary international law (emphasis added).43

It is also encouraging to note that the ICJ stressed that for the two Parties, East Timor remained a non-self-governing territory and its people had the right to self-determination.44

Judge Weeramantry observed in his dissenting opinion that the principle of self-determination is confirmed by all the sources of international law and proceeded to recount briefly how it had evolved, thereby addressing some of the concerns that have been expressed of the ICJ's earlier jurisprudence about gaps in the Court's reasoning.[45] He embarked on his exposition by recalling the pivotal role self-determination has been allocated in the structure of the UN Charter, not only, as has already been noted, in Articles 1(2), 55 and 56, but in addition Article 73, which in sum total establishes it as one of the fundamental principles of the UN Charter. However, it was important to note that the UN has been concerned with the practical implementation of this principle and Judge Weeramantry called to mind the landmark declarations of the UN General Assembly, such as resolutions 1514 (XV) and 2625 (XXV). He also referred to the expressions of support for the principle of self-determination by numerous states at the time of the adoption of resolution 2625 (XXV). And finally, he relied on the jurisprudence of the ICJ.[46] In the light of this evidence, Judge Weeramantry had no doubts about the significance of self-determination to contemporary international law.47

In an important development, Judge Weeramantry stressed the significance of the principle of permanent sovereignty over natural resources to the people of East Timor.[48] As a basic constituent of the right to self-determination this doctrine was designed, inter alia, to protect resources of a non-self-governing people until they attained independence.[49] Thus Article 1(2) of the International Covenant considers the right of self-determination to have an economic dimension, including the right of peoples freely to `dispose of their natural wealth and resources'. Hence it has also been elevated to the status of a human right[50] and has acquired the status of a peremptory norm.[51] In his view the Timor Gap Treaty was fundamentally at odds with the doctrine as set out in the Resolution on Permanent Sovereignty over Natural Resources since it not only deprived the people of East Timor of any say in how their resources were to be disposed of but it could deprive them irretrievably of those self-same resources.[52] The example of Namibia could set a precedent for the protection of East Timor's natural resources.53

Given the ICJ's prior pronouncements on the normative status of self-determination, it would have been remarkable had the ICJ adopted a position in the present case other than the categorical confirmation of self-determination as a general principle of international law. This conclusion appears to be the end product of a logical progression in the Court's thinking on self-determination and it could be said that it brings to a close the debate on the normative status of self-determination in its external dimension, although questions relating to scope and application remain very much alive. Thus, issues relating to its internal aspect -- its relevance to inhabitants of sovereign states requiring the observance of equal rights and inclusive government -- remain unaffected by the jurisprudence of the ICJ. As the reaffirmation of a general rule with a controversial past the ICJ's dicta is nevertheless to be welcomed. Undoubtedly, the ICJ's dicta still leaves many other issues outstanding but as Judge Weeramantry pointed out in his dissenting opinion, the ICJ was not faced with the question of defining, for example, which are the entities or peoples entitled to self-determination.[54] Accordingly, at the particular level, the judgement may be considered a missed opportunity in certain respects.[55] Attention has been drawn to the Court's failure to affirm East Timor's status as a non-self-governing territory in the dispositif[56] and its curious turn of phrase which apparently fails to uphold independently East Timor's right to self-determination.[57] Thus, Judge Skubiszewski felt that the ICJ should have elaborated on the law relating to non-self-governing territories to make relevant, inter alia, the prohibition on the use of force, non-recognition and the status of East Timor.[58] But especially disappointing, given that it formed part of the Portuguese submission, was the Court's failure to declare, as an element of the right to self-determination, the right of the people of East Timor to permanent sovereignty over their natural resources.[59] Whether the ICJ believed that its pronouncements on self-determination were sufficiently inclusive is entirely a matter of speculation. The ICJ may be criticised for having been unduly timid in its omission to expound on the ramifications of the right to self-determination but it may be that having come to the conclusion that it could not proceed with the case for the reasons the Court felt constrained in its approach to the subject of self-determination.

Self-Determination as Jus Cogens?

One of the questions that the East Timor Case gives rise to is whether the right of peoples to self-determination is a norm of jus cogens, or a peremptory norm of international law.[60] The ICJ's description here of the right to self-determination as one of the `essential principles of contemporary international law' having an erga omnes character is profoundly significant because it appears to amount to its elevation as a norm of jus cogens.[61] It should be observed that the notion of rights and obligations erga omnes (that is, valid universally)[62] and the concept of jus cogens are not identical, although they are inextricably linked.[63] Saliently, it would appear that support for this view can be found in the dicta of the ICJ in the Barcelona Traction Case, in which the Court indicated that certain obligations deriving from, inter alia, `the principles and rules concerning basic rights of the human person including protection from slavery and racial discrimination' were obligations erga omnes,[64] and hence forming part of the corpus of jus cogens norms.65

Opinion is divided but authority from most of the sources of international law exists supports the conclusion that self-determination is a norm of jus cogens. Evidence of the opinion of states may be obtained from the pleadings before the ICJ in the Western Sahara Case where both Spain and Algeria expressed this view.[66] However, state practice in some instances -- as evidenced by the examples of East Timor and Western Sahara where the exercise of self-determination has palpably been frustrated -- might suggest the contrary. This, so the argument goes, proves that self-determination is not a peremptory norm. Yet this view is clearly flawed. The fact that a rule of law is violated does not necessarily diminish the validity of that rule.[67] It is interesting to observe that both Indonesia and Morocco have never denied the existence of the right of self-determination nor have they suggested that it is inapplicable to the territories in question. On the contrary, both states have sought to justify their actions by arguing that these territories were occupied and integrated by them pursuant to the right of self-determination which had thus been duly exercised.[68] This suggests that both states acknowledge self-determination as a legal right and are anxious to be seen acting in conformity with and upholding it. Therefore, the right to self-determination is strengthened, not diminished. In addition, many UN General Assembly resolutions on the subject habitually refer to the `inalienable right of self-determination', thereby suggesting that no derogation from that right is permissible.[69] Indeed, the General Assembly has had considerable success on the whole in the field of decolonization. We should also be aware that a body of eminent jurists argue that the right of self-determination has achieved this status.[70] Furthermore, the arbitral award in the Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) impliedly accepted self-determination as a peremptory norm.[71] However, it is important to note that the ICJ had never pronounced directly on this point. Nevertheless, Judge Ammoun was in no doubt that it was, describing it both in the Barcelona Traction Case[72] and the Namibia Case[73] as an `imperative rule of law'. Judge Ranjeva described it in his separate opinion in the East Timor Case as `possessing the characteristic of an absolute right erga omnes'.[74] Similarly, Judge Weeramantry stated that the right to self-determination, which he agreed was also a right erga omnes, `constitutes a fundamental norm of contemporary international law, binding on all States'.[75] Furthermore, he questioned whether the Timor Gap Treaty was compatible with the right of the people of East Timor to, inter alia, self-determination.[76]

Of particular interest, however, is the Frontier Dispute Case where a Chamber of the ICJ found that the principle of uti possidetis was one of the most important to African states and consequently that account had always been taken of it in interpreting the principle of self-determination. Indeed, the Chamber stated that an apparent conflict existed between the two principles but that African States had decided that maintenance of the territorial status quo was the wisest policy.[77] Although the Chamber did not elaborate on this statement to any significant degree its dicta is open to the interpretation that self-determination is not a norm of jus cogens because the principle of uti possidetis qualifies the right to self-determination by restricting it to the decolonization process.[78] However, it should be observed that other norms of jus cogens may have limitations without their normative status being called into question.[79] The Chamber's statement seems to imply that self-determination may transcend colonial boundaries since if self-determination were to be exercised within defined colonial boundaries only no clash with the principle of uti possidetis need occur.[80] However, the principle of uti possidetis, as opposed to that of territorial integrity, only applies to states at the time of independence.[81] It is only when the right of self-determination has been exercised that the principle of uti possidetis becomes operative. The Chamber makes this point saying that the principle applies to new states not with retroactive effect but immediately and from that moment onwards; `the principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands'.[82] Consequently, no incompatibility exists between the two principles unless self-determination extends beyond the colonial context.

The Frontier Dispute Case notwithstanding, attention has been drawn to different sources which concur in recognising self-determination as a norm of jus cogens. The ICJ appears to have impliedly accepted self-determination as such in the present case. In the light of the foregoing evidence, it can be advanced that self-determination is a norm of jus cogens.

Implications of the erga omnes character of self-determination

The dicta of the ICJ in the East Timor Case recognising self-determination as a right erga omnes gives rise to considerable scope for speculation, particularly given the fact that in this specific case the ICJ declined to pronounce on the consequences of this finding. The ICJ actually stated that it considered that:

the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgement would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.[83]

This conclusion has been criticised as a retrograde step reminiscent of the excessive formalism of the majority judgement in the 1966 South West Africa Cases.84

It will be recalled that in that case the ICJ rejected as unknown to international law the concept of, or equivalent of, actio popularis, or the right of any member of a community to take legal action in vindication of a public interest, and thus by extension the concept of erga omnes rights and duties.[85] Subsequently, however, the ICJ reversed this particular finding, stating in the Barcelona Traction Case that:

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.[86]

Hence it came to be accepted that the essence of an erga omnes obligation was that its breach would thereby confer locus standi before the ICJ on all States, regardless of special interest.[87] Qualified support for this line of reasoning comes from Judge Weeramantry who observed in the East Timor Case that one of the issues at stake was that of rights opposable erga omnes as against Australia, that is, the right erga omnes of the people of East Timor to the recognition of their self-determination. A violation of that right would, in his view, lead to the grant of judicial relief.[88] While the ICJ's judgement in the East Timor Case demands a reconsideration of this view, it does not appear to be as depressing or restrictive as some critics might suggest.[89] As the Statute of the ICJ stands at present it cannot be considered as a serious proposition to implead a State before the ICJ where that State is not a party to some jurisdictional clause conferring jurisdiction on the ICJ, or otherwise accepts the jurisdiction of the ICJ.[90] To do otherwise would constitute a manifest disregard on the limits of its jurisdiction and would be tantamount to assuming universal jurisdiction which would not only be contra legem but would undermine the credibility of the ICJ. However, the East Timor Case does not stand as authority for the view that the concept of erga omnes rights and obligations is meaningless in so far as international litigation is concerned. Where consent to jurisdiction does exist, be that based on Article 36(2) of the Statute or a jurisdictional clause in a treaty, the East Timor Case need not prevent such jurisdiction so long as a third party, which has clearly not accepted the jurisdiction of the ICJ, is not impleaded. Thus, an erga omnes right can be exercised before the ICJ provided a jurisdictional basis exists.[91] The ratio decidendi of the East Timor Case is that, Article 59 of the Statute notwithstanding, the requirement of consent means that the ICJ will not assume jurisdiction where the legal interests of a third party form the very subject matter of the case, however much that may offend our sense of justice. Consequently, this decision may be considered disappointing in the sense that, as both Judge Weeramantry and Judge ad hoc Skubiszewski pointed out,[92] the subject matter of the case concerned the conduct of Australia, which the ICJ could have pronounced upon without examining the actions of Indonesia.[93]

The finding by the ICJ that self-determination is an erga omnes right is still highly significant nevertheless, because it would appear to have repercussions beyond judicial proceedings. The obligations erga omnes, as the ICJ itself acknowledged in the East Timor Case,[94] remain extant. This then should have implications for the international community as a whole for when a state breaches an obligation erga omnes it injures the international legal order in general. The offending state carries responsibility for the conduct which affects the injured state or states.[95] It therefore means that any state, which is thereby classified as an injured state for the purposes of responsibility,[96] may assert a legal interest to enforce that right at the inter-state level and/or before international, in this specific case, political, fora.[97] Paradoxically, however, the ICJ proceeded to undermine the logic of its own findings. It remained unpersuaded by the Portuguese submission that the relevant UN resolutions were mandatory and thus imposed an obligation on states not to recognise Indonesian authority over East Timor nor required states to deal exclusively with Portugal regarding East Timor's continental shelf.[98] In the absence of such binding resolutions, Australia was consequently under no obligation to refrain from dealings with Indonesia over East Timor.[99] The ICJ thus appears to have endorsed the view that, to avoid anarchy, the enforcement of erga omnes obligations is a collective one acting through the UN.[100] Yet the weakness of the collective response argument is clearly accentuated. In failing to find that the UN had acted in an imperative fashion towards East Timor, the international community has indicated that the concept of erga omnes is, at best, of limited value and, at worst, ineffectual.[101] The international community has patently failed to uphold the international rule of law and has lacked the will to insist upon compliance with international law. To the contrary, many states have sought accommodation with a transgressor. Hence an alternative approach seems preferable.

As a means of realising an erga omnes obligation, the individual response has therefore much to commend it. As Judges Weeramantry and Skubiszewski indicated, every state has an erga omnes duty to recognise and respect self-determination.[102] Furthermore, states are under a duty not to act in a manner that will effectively deny that right or impair its exercise.[103] In Judge Weeramantry's view, Australia was in violation of the principle of self-determination which raised questions about the validity of the Timor Gap Treaty.[104] Since Australia had an obligation erga omnes towards all states to respect the right of self-determination, and hence correspondingly opposable to it, Portugal and East Timor would have a legal interest in the observance of that duty.[105] Mutatis mutandis, it necessarily follows that Indonesia would be under the same obligation to recognise the right of the people of East Timor to self-determination and that that obligation is opposable erga omnes. Moreover, the denial by Indonesia of the right of the people of East Timor to self-determination, alluded to by the ICJ,[106] could be classified as a use of force,[107] \ta violation of human rights,[108] and an international crime.[109] Thus, in Judge Skubiszewski's opinion, the international community was under an obligation not to recognise a situation created by the unlawful use of force.[110] To elaborate further on this point, it could be argued that the international community is under an obligation to recognise as illegal and invalid Indonesia's presence in East Timor and that an obligation also exists requiring it to refrain from lending any support or assistance to Indonesia with reference to its presence in East Timor.[111] By maintaining the present situation, Indonesia incurs international responsibilities arising from a continued violation of an international obligation.[112] It follows from all of the above that the international community is under an obligation: (a) not to recognise the Timor Gap Treaty; and (b) not to recognise Indonesia's administration of East Timor.

Application of the right to self-determination

The recognition by the ICJ in the East Timor Case that East Timor continued to have the status of a non-self-governing territory and that its people had a right to self-determination[113] appears to be an implicit denunciation of the current situation. The ICJ proceeded to state that the General Assembly:

which reserves to itself the right to determine the territories which have to be regarded as non-self-governing for the purposes of the application of Chapter XI of the Charter, has treated East Timor as such a territory. The competent subsidiary organs of the General Assembly have continued to treat East Timor as such to this day. Furthermore, the Security Council, in its resolutions 384 (1975) and 389 (1976) has expressly called for respect for `the territorial integrity of East Timor as well as the inalienable right of its people to self-determination in accordance with General Assembly resolution 1514 (XV).[114]

Clearly, the ICJ was of the view that no act of self-determination had yet taken place in East Timor.

The ICJ has made no attempt to formulate any binding norms of international law requiring the inhabitants of non-self-governing territories to exercise their right of self-determination by any particular method, but has contented itself with expressing the view that a rule exists requiring that attention be paid to the freely expressed will of the people. It appears that the General Assembly has a measure of discretion with respect to the form and procedure by which the right to self-determination is to be realised.[115] It seems therefore that no binding rules exist in this area except to the extent that the wishes of the people must be freely ascertained.

The ICJ examined this issue in some detail in the Western Sahara Case where it seems to have set the basic requirement for the exercise of the right to self-determination. Relying on General Assembly Resolutions 1514 (XV), 1541 (XV) and 2625 (XXV) the ICJ emphasised the basic need to take account of the wishes of the people concerned through informed and democratic processes.[116] This essential feature was further reaffirmed by some judges in their separate opinions. Judge Nagendra Singh described ascertaining the freely expressed will of the people as `the very sine qua non of all decolonisation'. He continued, `The consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence'.117

Judge De Castro stated that:

the peoples of non-self-governing territories have the right to decide upon their own destiny and to decide freely, and by democratic means, either to become independent or to become integrated with an independent state. The consequence thereof was that it had to be recognised that these peoples must be regarded as having the right ... to decide upon their independence.118

Judge Dillard was similarly of the view that the paramount consideration was the freely expressed wishes of the population. He suggested that self-determination is satisfied by a free choice not by a particular consequence of that choice or a particular method of exercising it.[119] He added further that, `It is for the people to determine the destiny of the territory and not the territory the destiny of the people.'[120] Judge Dillard's opinion is therefore quite explicit: self-determination is the overriding consideration.

Moreover, Judge ad hoc Boni adopted a similar position. He stated that even if ties of sovereignty between Morocco and the Western Sahara had been established, the General Assembly would still have been under an obligation to consult the inhabitants of the Western Sahara on the different options provided for in resolution 1541 (XV).[121] The inference to be drawn from this statement is that self-determination constitutes the principal factor.

Judge Skubiszewski adopted a similar position in the East Timor Case. He drew attention to the fact that Portugal had accepted the paramountcy of the interests of the people of East Timor. It was for them to decide upon their future and Portugal would accept the result of the exercise of the right to self-determination.122

In his separate opinion in the East Timor Case Judge Vereshchetin, for whom the right of the people of East Timor to self-determination `lies at the core of the whole case',[123] expressed the view that the jurisprudence of the ICJ demonstrated that contemporary international law regarding decolonisation imposed upon the administering power an obligation to consult the people of a non-self-governing territory when the issue directly concerned that people. Such a duty could only be dispensed with in exceptional cases, which did not apply in the present case.[124] He argued that the people of East Timor had a role to play in the proceedings and that the ICJ should have ascertained, and taken account of, evidence of the views of the representatives of East Timor.[125] It seems clearly established that whereas various modes of implementing the right to self-determination exist, they must reflect the free and genuine expressions of the will of the people.

It is encouraging to note that the ICJ has in the East Timor Case held out hope for territories forcibly denied self-determination in recalling that East Timor remained a non-self-governing territory and that its people had the right to self-determination and that the references to Portugal as the administering power in a number of UN resolutions was not at issue between the parties. This clearly amounts to non-recognition of the Indonesian claim to sovereignty and would appear to be an implicit condemnation of the Indonesian annexation. Thus Judge Weeramantry opined in his dissenting opinion that the right of Portugal as the administering power over East Timor, recognised as such by the UN, had been upheld by the ICJ. Reflecting the opinion expressed by Judge De Castro in the Western Sahara Case,[126] Judge Weeramantry stated that the position and responsibilities of an administering power recognised as such by the UN are not lost by the mere circumstance of loss of physical control since to do otherwise would contravene the protective scheme embodied in the UN Charter for the care of non-self-governing territories.[127] At the very least the purported annexation of these territories should not, as Judge ad hoc Skubiszewski (dissenting) observed in the East Timor Case, be recognised since recognition of annexation erodes self-determination.[128] But in order to secure the effective realisation of the right of self-determination where it is frustrated in violation of international law, such as in East Timor and the Western Sahara, it is submitted that there should be a presumption in favour of recognising the sovereignty of self-proclaimed states such as the Saharan Arab Democratic Republic.129

However, it is important to remember that decolonisation does not automatically equal independence. Both Resolutions 1541 (XV) and 2625 (XXV) contemplate the possibilities of independence, free association and integration.[130] Indeed, the latter envisages any other political status without defining it.[131] The ICJ approved of these methods in the Western Sahara Case but emphasised the need to consult the people concerned.[132] Judge Luchaire took up this point in his Separate Opinion in the Frontier Dispute Case where he warned against automatically equating decolonisation with independence since, as has been indicated, other alternatives are possible. He therefore concluded that the frontiers of an independent State emerging from colonisation may differ from the frontiers of the colony it replaces.[133] In the final analysis what is important is, as the ICJ emphasised in the Western Sahara Case, the need to take account of the wishes of the people concerned.[134] This does not appear to have occurred in any meaningful way in East Timor.135

Conclusion

The role of the ICJ in developing self-determination as a norm of international law has been significant and, no doubt, will continue to evolve. At a general level, it asserted plainly, at a time of substantial opposition, that it was part of international law and it has consistently maintained that position over the years. No doubt it seems regrettable that the ICJ did not always elaborate on some issues or address them adequately. Nevertheless, the point appears to have been reached where it is suggested that self-determination has acquired the normative status of jus cogens. This is an exciting development. It has proved a declared supporter of the right of peoples to self-determination. What emerges clearly from the jurisprudence of the ICJ is that the right to self-determination is a right of process and not of outcome. That is, international law requires that peoples be allowed to express their opinion on the alternative choices available to them, be it independence or some other status.[136] It is therefore an entitlement that gives people a choice. However, the East Timor Case sends mixed signals. Whereas its finding that self-determination has an erga omnes character as an essential principle of international law seems not only right, (perhaps for some a statement of the obvious, but to be welcomed) the qualifications that emerged appear to have undermined seriously, to the point of destruction, the very essence of the concept. International law imposes the duty on states not to recognise situations created in violation thereof and to act to uphold that law. Yet, for reasons of economic and political expediency, many have failed to do so, thereby undermining the international rule of law. The practical outcome is that the failure to respect the right to self-determination of the people of East Timor is the root cause of the disturbing human rights situation there. The international community has ultimately failed the people of East Timor and by extension the struggle of oppressed people in the Western Sahara and elsewhere.


[*] Gino Naldi LL.B (University of Birmingham), LL.M (University of Birmingham), Ph.D (University of Birmingham), Senior Lecturer in Law, university of East Anglia, Norwich, United Kingdom

[1] Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 14-27.

[2] Ibid, pp 165-204.

[3] Thus General Assembly Resolution 3103 (XXVIII) 1973 on the Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racists Regimes states, inter alia, that, `The struggle of peoples under colonial and alien domination and racist regimes for the implementation of their right to self-determination and independence is legitimate and in full accordance with the principles of international law.' In addition, paragraph 2(2) of the Vienna Declaration and Program of Action, adopted by the UN World Conference on Human Rights 1993, (1993) 32 ILM 1661, states, inter alia, that, `taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognises the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realise their inalienable right to self-determination.' See further, Western Sahara Case [1975] ICJ Report 12, 99-100 per Judge Ammoun, Separate Opinion.

[4] Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 101-240, 248-256.

[5] In its Opinion No. 2 in 1992, the EC Arbitration Commission on the former Yugoslavia observed that, `The Commission considers that international law as it currently stands does not spell out all the implications of the right to self-determination', 92 ILR 167, para 1.

[6] Common Article 1(1) to the International Covenants states that, `All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.' See McGoldrick D The Human Rights Committee (1994) 14-16, 247-268.

[7] Vienna Declaration and Program of Action, adopted by the UN World Conference on Human Rights 1993, (1993) 32 ILM 1661.

[8] Human Rights: A Compilation of International Instruments Vol II (1997) 374. See also the Charter of Paris of the OSCE, ibid, 409.

[9] Naldi G J (ed) Documents of the Organization of African Unity (1992) 109.

[10] Without opening the debate on the normative effect of General Assembly resolutions, it should nevertheless be noted that a large body of opinion supports the view that both

the Declaration on the Granting of Independence to Colonial Countries and Peoples and the Declaration on the Principles of International Law concerning Friendly Relations Among States have either contributed to, or state, general principles of international law, see Western Sahara Case [1975] ICJ Report 12, 31-37; Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14, 99-100; Brownlie I Basic Documents in International Law (1995), 36, 307; Harris D J Cases and Materials on International Law (1998) 58-64; Shaw M International Law (1997), 89-93, 178-79; Shearer I A Starke's International Law (1994) 46.

[11] See Section 2 below.

[12] General comment 12, Human Rights Committee, UN Doc HRI/GEN/1/Rev.3 (1997), 13-14.

[13] Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 101-140; Higgins R Problems and Process: International Law and How We Use It (1994), 114-28; Klabbers J and Lefeber R `Africa: Lost Between Self-Determination and Uti Possidetis' in Brolmann C Peoples and Minorities in International Law (1993) 37, 43-54.

[14] Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 67-100.

[15] East Timor (Portugal v Australia) [1995] ICJ Reports, 90.

[16] This conclusion emerges from State practice and opinion juris as reflected, inter alia, in numerous General Assembly resolutions and international conventions, in particular those cited above note 13, 1. The practice of the United Kingdom in decolonizing dependent territories over the last twenty years is particularly illuminating, see McCorquodale R `Negotiating Sovereignty: The practice of the United Kingdom in regard to the right of self-determination' (1995) 66 BYIL 283. See also the reference by Judge Weeramantry in his dissenting opinion in the East Timor Case, 196-97, to the views expressed by states supportive of the principle of self-determination in the debates on the Declaration of Friendly Relations. Jurists who support this conclusion include Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 109, 115; Higgins R Problems and Process: International Law and How We Use It (1994), 114-28; 113; Klabbers J and Lefeber R `Africa: Lost Between Self-Determination and Uti Possidetis' in Brolmann C Peoples and Minorities in International Law (1993) 39-41; Jennings R Y and Sir Arthur Watts (eds) Oppenheim's International Law, Vol 1 (1992) p 285; Brownlie I Principles of Public International Law (1990) p 595-8; Crawford J The Creation of States in International Law (1979) pp 84-105; Dixon M and McCorquodale R Cases and Materials on International Law (1991) p 250; Lachs M `The law in and of the United Nations' (1960-61) 1 Indian Journal of International Law 429. In his dissenting opinion, Judge ad hoc Skubiszewski observed that as the decolonization period nears its end, Chapter XI of the UN Charter should adapt to new challenges, East Timor Case, 273. It must be observed, however, that there is now a weight of opinion that the right of self-determination has general application beyond the colonial context.

[17] It should be observed that the jurisprudence of the ICJ has been limited to an examination of external self-determination; Bowring B `Self-Determination and the jurisprudence of the ICJ' in International Law and the Question of East Timor (1995) 151 at 163.

[18] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16 at 31.

[19] See eg, Sir Gerald Fitzmaurice The Future of Public International Law (1973) p 233; Goodrich L M, Hambro E and Simons A P The Charter of the United Nations (1969) p 371; \tSchwarzenberger G and Brown E D A Manual of International Law (1976) p 59; Verzijl J H W International Law in Historical Perspective Vol I (1968) p 558; Pomerance M Self-Determination in Law and Practice: The New Doctrine in the United Nations (1982) p 70.

[20] Wooldridge F `The Advisory Opinion of the ICJ in the Western Sahara Case' (1979) 8 Anglo-American Law Review 88. See also Higgins R Problems and Process: International Law and How We Use It (1994) at 112, who doubts whether the UN Charter provides for a right to self-determination.

[21] [1971] ICJ Reports, at 55 ff, especially 73-5.

[22] Western Sahara Case [1975] ICJ Reports 12.

[23] See also the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16 .

[24] Western Sahara Case [1975] ICJ Reports 12, at 31-3.

[25] Ibid, 121-2 see also Bowring B `Self-Determination and the jurisprudence of the ICJ' in International Law and the Question of East Timor (1995) 161-62.

[26] Wooldridge F `The Advisory Opinion of the ICJ in the Western Sahara Case' (1979) 8 Anglo-American Law Review 105-6.

[27] Reparation for Injuries Case [1949] ICJ Reports, 174; Certain Expenses of the UN Case [1962] ICJ Reports, 151; see DW Greig International Law (1976), pp 484-87. See also Article 31(1) of the Vienna Convention on the Law of Treaties 1969. The European Court of Human Rights has similarly adopted a teleological or purposive approach towards interpreting the European Convention on Human Rights, see Wemhoff v Germany (1968) Series A, Vol 7; Tyrer v United Kingdom (1978) Series A, Vol 26; Merrills J G The Development of International Law by the European Court of Human Rights (1993) pp 69-97; Harris D , O'Boyle M and Warbrick C Law of the European Convention on Human Rights (1995), pp 6-9; as has the Inter-American Court of Human Rights in relation to the American Convention on Human Rights, see eg, Habeas Corpus in Emergency Situations (1988) 9 HRLJ 94; Davidson S The Inter-American Court of Human Rights (1992) pp 129-42.

[28] [1971] ICJ Reports, at 55 ff, especially 47-50.

[29] [1986] ICJ Reports, 554 at 567.

[30] In the [1975] ICJ Report 12, 32-33, 36-37, the ICJ emphasised the `need to pay regard to the freely expressed will of peoples' through `informed and democratic processes'. See also \tHiggins R Problems and Process: International Law and How We Use It (1994) 13 at 113; Escarameia P `The meaning of self-determination and the case of East Timor' in International Law and the Question of East Timor pp 119-150. However, as Klabbers J and Lefeber R `Africa: Lost Between Self-Determination and Uti Possidetis' in Brolmann C Peoples and Minorities in International Law (1993) 37, 43-54.39, have pointed out this conclusion is not without its difficulties since the rights and obligations of States have still to be determined conclusively.

[31] Higgins, as above, 114-21; Klabbers J and Lefeber R `Africa: Lost Between Self-Determination and Uti Possidetis' in Brolmann C 40-54. It is important to note that the UN Human Rights Committee has reinforced the legal significance of self-determination as a human right. In General Comment 12 it has stated that, `The right of self-determination is of particular importance because its realisation is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that states set forth the right of self-determination in a provision of positive law in both Covenants, and placed this provision as Article 1 apart from and before all of the other rights in the two Covenants'. This also becomes evident from the conflation of the principle of equal rights and self-determination of peoples in documents such as the Vienna Declaration and Programme of Action, paragraph 2(3), Principle VIII of the Helsinki Final Act and the Charter of Paris.

[32] East Timor (Portugal v. Australia) [1995] ICJ Reports 90.

[33] Elliot P D `The East Timor Dispute' (1978) 27 ICLQ 238; Taylor J G `Decolonisation, independence and invasion' in International Law and the Question of East Timor(1995) p 21.

[34] See eg, General Assembly Resolution 3485 (XXX) and Security Council Resolution \t384 (1975).

[35] See General Assembly resolutions 31/53 and 32/34 respectively.

[36] Clark R S `The Substance of the East Timor Case in the ICJ' in International Law and the Question of East Timor, as above, 243. The Decolonization Committee, properly known as the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, was created in 1961 by the General Assembly pursuant to resolution 1654 (XVI) with the mandate of securing respect for the principle of equal rights and self-determination of peoples.

[37] Including the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities, see UN Doc E/CN.4/Sub.2/14. It should be noted further that the UN Secretary-General has used his good offices in an effort to promote the search for a comprehensive and internationally acceptable solution to the question of East Timor, see eg, UN Doc E/CN.4/61; E/CN.4/56.

[38] Australia/Indonesia Treaty on the Zone of Co-operation in an Area Between the Indonesian Province of East Timor and Northern Australia of 11 December 1989, (1990) 29 ILM 469.

[39] East Timor (Portugal v Australia) [1995] ICJ Reports, 94-95. It should be observed that Australia recognized Indonesian sovereignty over East Timor in 1979, see Chinkin C `Australia and East Timor in international law' in International Law and the Question of East Timor (1995) at pp 277-86.

[40] East Timor Case, as above, 105. The ICJ was thus able to distinguish the Certain Phosphate Lands in Nauru Case (Nauru v Australia) [1992] ICJ Reports, 240; see Scobbie I and Drew C `Self-Determination Undetermined: The Case of East Timor' (1996) 9 Leiden Journal of International Law 185 at 207-208.

[41] As expressed in the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom and United States) (Preliminary Question) Case [1954] ICJ Reports, 19 at 32. For commentary, see Scobbie and Drew, as above at 195-208; C Chinkin `The East Timor Case (Portugal v. Australia)' (1996) 45 ICLQ 712; I Scobbie `The presence of an absent third: procedural aspects of the East Timor case', in International Law and the Question of East Timor, above, 223.

[42] [1995] ICJ Reports, 99. However, the parties were in disagreement as to the consequences, Scobbie and Drew, as above, 188-89.

[43] Ibid, 102. This dicta was endorsed by Judges Ranjeva, Weeramantry, and Skubiszewski in their separate and dissenting opinions at 129, 193-204, and 265-68 respectively.

[44] Ibid, 105-106.

[45] Wooldridge F `The Advisory Opinion of the ICJ in the Western Sahara Case' (1979) 8 Anglo-American Law Review 88.

46 East Timor (Portugal v Australia) [1995] ICJ Reports, 90 section 2.

[47] Ibid, 194-97.

[48] Ibid 197-200, 203-204, 221-222; and further, 276 per Judge Skubiszewski.

[49] On its derivation from the principle of self-determination, Brownlie I Principles of Public International Law (1990) pp 539-42. That the principle of permanent sovereignty over natural resources is a rule of international law is not in dispute; see Birnie P W and Boyle A E International Law & the Environment (1992) pp 112-13. Thus the landmark General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources 1962 has been accepted as reflecting customary law, see Texaco v Libya (1978) 17 ILM 1 paras 87-88; Kuwait v AMINOIL (1982) 21 ILM 976 para 143. See further, Crawford J `The Rights of Peoples: `Peoples' or `Governments'?' in Crawford J (ed) The Rights of Peoples (1988), pp 63-65. See also Principle 2 of the Rio Declaration on Environment and Development.

[50] Common Article 1(2) of the International Covenants 1966, see General Comment 12, above n 12 at para 5; McGoldrick D The Human Rights Committee (1994) 14-16, at 250-51; Article 25 of the International Covenant on Economic, Social and Cultural Rights; and Article 21(1) of the African Charter on Human and Peoples' Rights which states that, `All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.' Judge Weeramantry believes it to have erga omnes status, East Timor (Portugal v Australia) [1995] ICJ Reports, 221. The Human Rights Committee has observed that this right `entails corresponding duties for all States and the international community', General Comment 12, as above; see also Brownlie I Principles of Public International Law (1990); p 513.

[51] [1995] ICJ Reports, 202-203 per Judge Weeramantry.

[52] Ibid, 198-99. Note that Article 1(2) of the International Covenants provides that, inter alia, `[in] no case may a people be deprived of its own means of subsistence'. See also Article 21(1) of the African Charter on Human and Peoples' Rights, as above.

[53] Decree No 1 for the Protection of the Natural Resources of Namibia, promulgated by the UN Council for Namibia; see further, Booysen H and Stephan G E J `Decree No 1 of the United Nations Council for South West Africa' (1975) 1 South African Yearbook of International Law 63. Note that Article 21(2) of the African Charter of Human and Peoples' Rights states that, `In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.' It should be noted that the

Certain Phosphate Lands in Nauru Case (Nauru v Australia) (Preliminary Objections) [1992] ICJ Reports 240, which was discontinued before the merits stage, raised interesting questions about the responsibilities of an administering State with regard to the spoliation of the resources of a non-self-territory.

[54] East Timor (Portugal v Australia) [1995] ICJ Reports, 193.

[55] Scobbie and Drew (`Self-Determination Undetermined: The Case of East Timor' (1996) 9 Leiden Journal of International Law 185 at 207-208) are particularly critical.

[56] [1995] ICJ Reports 12 at 259 per Judge Skubiszewski.

[57] Scobbie and Drew, as above, 201.

[58] [1995] ICJ Reports, as above, 273-74.

[59] Scobbie and Drew, as above, 201.

[60] Article 53 of the Vienna Convention on the Law of Treaties 1969 defines a peremptory norm of international law as `a norm accepted and recognised by the international community ... as a norm from which no derogation is permitted.' See generally, Schwarzenberger G `International Jus Cogens?' (1965) 43 Texas Law Review 455; Verdross A `Jus Dispositium and Jus Cogens in International Law' (1966) 60 AJIL 55; Meron T `On a Hierarchy of International Human Rights' (1986) 80 AJIL 1.

[61] East Timor (Portugal v Australia) [1995] ICJ Reports, 102, which does not actually employ the term `jus cogens'.

[62] Brownlie I Principles of Public International Law (1990) at xivii defines the term `erga omnes' as, `Opposable to, valid against, `all the world', ie all other legal persons, irrespective of consent on the part of those thus affected'. De Hoogh writes of `obligations of a higher normative value, in the sense that they are obligations towards the international community as a whole', De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory norms in perspective' (1991) 42 Austrian Journal of Public and International Law 183 at 192. See also, Annacker C `The legal regime of erga omnes obligations in international law' (1994) 46 Austrian Journal of Public and International Law 131 at 135-37. It would not appear possible, therefore, for states to contract out of such duties and obligations, see North Sea Continental Shelf Cases [1969] ICJ Reports 3 at 229 per Judge Lachs, dissenting opinion. See further, Section 5.

[63] Thus Dugard describes them as `partners', Dugard J `1966 and All That: The South West african judgement revisited in the East Timor Case' (1996) 8 African Journal of International and Comparative Law 549 at 554. Gowlland-Debbas is of the view that they `are not coincidental, though they overlap, for they perform different functions in different fields', Gowlland-Debbas v `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) p 330. Cassesse writes that `peremptory norms generally impose obligations erga omnes', A Cassese Self-Determination of Peoples: A Legal Reappraisal (1995) pp 1173. See also, de Hoogh, as above, 192-94.

[64] [1970] ICJ Reports, 3 at 32.

[65] South West Africa Cases [1966] ICJ Reports, 6 at 298 per Judge Tanaka, Dissenting Opinion; Gowlland-Debbas, as above, pp 340-42; Thirlway H `The Law and Procedure of the International Court of Justice 1960-1989' (1990) 60 BYIL 1 at 93.

[66] Western Sahara, ICJ Pleadings, Vol I, 206-208; Vol IV, 497-500; Vol V, 318-20. It should also be noted that Guinea-Bissau submitted that self-determination is a peremptory norm in the Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) 83 ILR 1 at 24. See further, A Cassese Self-Determination of Peoples: A Legal Reappraisal (1995) pp 136-40, 171-72.

[67] Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14 at 98.

[68] See respectively, Cassese, as above, 225-26; Clark R S `The "Decolonization" of East Timor and the United Nations norms on self-determination and aggression' in International Law and the Question of East Timor 65 at 73-91; Western Sahara Case, ICJ Pleadings, Vol V, 179-80, where Morocco argued that the principle of decolonization was a norm of jus cogens and that self-determination was but an aspect of that principle; and further, Damis J Conflict in Northwest Africa: The Western Sahara Dispute (1983) p 75.

[69] See eg, Resolutions 3485 (XXX) and 33/39 (on East Timor); Resolutions 33/31 A, 35/29 and 37/28 (on the Western Sahara); Resolution 33/36 (on Belize). See also eg, Security Council Resolution 384 (1975) (on East Timor). The Human Rights Committee similarly describes it as an `inalienable right', in addition to `an essential condition', UN Doc HRI/GEN/1/Rev.3 (1997), 13, while the Committee on the Elimination of Racial Discrimination has described it as `a fundamental principle of international law', ibid 114. For views expressed by other UN organs, see Cassese, as above, p 135-36. These terms may be considered to have an equivalence to jus cogens although used in the context of human rights, see T Meron `On a Hierarchy of International Human Rights' (1986) 80 AJIL 20. The Human Rights Committee has expressed the view that many provisions in the Covenant on Civil and Political Rights have the character of peremptory norms and thus do not permit reservations, General Comment 24, Human Rights Committee, UN Doc HRI/GEN/1/Rev.3 (1997), 44. See also Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights (1990) 11 HRLJ 118 para 38.

[70] See Brownlie I Principles of Public International Law (1990) 513; Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 133-40. Other scholars supporting this view include J Dugard International Law: A South African Perspective (1994) p 76; Dixon M Textbook on International Law (1996) p 35. See also the reference by Judge Skubiszewski to Francophone jurists, East Timor Case (Portugal v Australia) [1995] ICJ Reports 266. For contrary views, see Pomerance M Self-Determination in Law and Practice: The New Doctrine in the United Nations (1982) Ch IX; Crawford J The Creation of States in International Law (1979) p 81.

[71] [1975] ICJ Report 12, Western Sahara Case [1975] ICJ Report 12, 25-26. See also the sweeping statement made by the EC Arbitration Commission on the former Yugoslavia in Opinion No 1, 92 ILR 162, para 1(e).

[72] [1970] ICJ Reports 3 at 304.

[73] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16 at 73-75.

[74] [1995] ICJ Reports, 129. See also Judge Skubiszewski's dissenting opinion at 265-66.

[75] Ibid, 221.

[76] Ibid at 212, 222. See also Judge Skubiszewski at 277. The doubts of Judge Weeramantry and Judge Skubiszewski about the validity of the Treaty would appear to be based on Article 53 of the Vienna Convention on the Law of Treaties. Alternatively, it could be argued that since self-determination is enshrined in treaty law, namely, the UN Charter, it would follow therefrom that under Article 103 of the Charter the obligations of a Member State thereunder prevail over their obligations under other treaties where a conflict of obligation arises, see Lachs M `The law in and of the United Nations' (1960-61) 1 Indian Journal of International Law at 431; Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom; Libyan Arab Jamahiriya v United States of America) (Provisional Measures of Protection) [1992] ICJ Reports 1 and 113, at 15.

[77] [1986] ICJ Reports at 565, 567. See also Opinion No 2 of the EC Arbitration Commission, pp 165-204 at para 1.

[78] Naldi G J `The Case concerning the Frontier Dispute (Burkina Faso/Mali): Uti Possidetis in an African Perspective' (1987) 36 ICLQ 893.

[79] The classic example is the prohibition on the non-use of force, affirmed as having the character of jus cogens in the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14, 100-101, which permits exceptions in the instances of self-defence and use of force authorised by the UN. Another example may

be the principle of non-intervention, see the Nicaragua Case, as above, 199 per Judge Sette-Camara, notwithstanding forcible humanitarian intervention authorised by the Security Council, such as the cases of Rwanda and Somalia, see Malanczuk P Akehurst's Modern Introduction to International Law (1997) 395-415. See further, Gowlland-Debbas V `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) pp 336-37.

[80] Naldi G J `The Case concerning the Frontier Dispute (Burkina Faso/Mali): Uti Possidetis in an African Perspective' (1987) 36 ICLQ 900.

[81] Opinion No 3 of the EC Arbitration Commission on the former Yugoslavia, 92 ILR 170, para 2(3).

[82] [1986] ICJ Reports, 568.

[83] East Timor (Portugal v Australia) [1995] ICJ Reports, 102.

[84] Dugard J `1966 and All That: The South West African Judgement Revisited in the East Timor Case' (1996) 8 African Journal of International and Comparative Law 549. Scobbie I and Drew C `Self-Determination Undetermined: The Case of East Timor' (1996) 9 Leiden Journal of International Law 185 at 190 therefore consider the ICJ's finding on self-determination to be irrelevant.

[85] [1966] ICJ Reports, 6 at 47. But see further the Court's statement at 32-33 and 387-88 per Judge Jessup, dissenting opinion. Gowlland-Debbas V `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) p 352-53. On actio popularis in international law, see Schwelb E `The actio popularis and international law' (1972) 2 Israel Yearbook of Human Rights 46.

[86] East Timor (Portugal v Australia) [1995] ICJ Reports, 32. See also South West Africa Cases (Preliminary Objections) [1962] ICJ Reports, 319 at 424-33 per Judge Jessup, separate opinion.

[87] Thirlway H `The Law and Procedure of the International Court of Justice 1960-1989' (1990) 60 BYIL 1 at 93; Dugard J `1966 and All That: The South West African Judgement Revisited in the East Timor Case' (1996) 8 African Journal of International and Comparative Law 554-555. Thus, Brownlie I Principles of Public International Law (1990) p 473 writes in the context of

locus standi in respect of legal interests of other entities that, `"Protective" claims in respect of "dependent" peoples may have special features ... a tribunal should be reluctant to reject a claim on account of prescription or laches of the protecting sovereign. Such claims, and the type of legal interest which they represent, may be founded on the principle of self-determination as a part of jus cogens and on the General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples' (footnotes omitted). See further, Gowlland-Debbas V `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) pp 354-56.

[88] East Timor (Portugal v Australia) [1995] ICJ Reports, 215. However, he acknowledged that the concept of erga omnes obligations `has not yet drawn a definitive decision from the Court in relation to the manner in which the principle will operate in case of breach ... It has thus happened that no Judgement of this Court thus far has addressed the consequences of violation of an erga omnes obligation', but the present case provided that opportunity, as above, 214-15.

[89] Dugard, pp 562-63 interprets the East Timor Case as confirming the ICJ's conservatism on questions of jurisdiction and admissibility. Thus, Judge Weeramantry, East Timor (Portugal v Australia) [1995] ICJ Reports, 216, remarks that a `disregard of erga omnes obligations makes a serious tear in the web of international obligations, and the current state of international law requires that violations of the concept be followed through to their logical and legal conclusion', namely, judicial relief.

[90] De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory norms in perspective' (1991) 42 Austrian Journal of Public and International Law 183 at 197; Gowlland-Debbas, Gowlland-Debbas v `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) 359-60. Thus, Rosenne observes that the ICJ's procedural law left it with little choice in this case; Rosenne S `Decolonisation in the International Court of Justice' (1996) 8 African Journal of International and Comparative \tLaw 564 at 571.

[91] Gowlland-Debbas, as above, 360-61; Annacker C `The Legal Regime of Erga Omnes Obligations in International Law' (1994) 46 Austrian Journal of Public and International Law 131 at 165. For an earlier discussion of some of these implications, see Schwelb E `The actio popularis and international law' (1972) 2 Israel Yearbook of Human Rights 46.

[92] East Timor (Portugal v Australia) [1995] ICJ Reports, 53-58, 204-16, 242-50 respectively.

[93] It should be noted that the ICJ did find the existence of a genuine legal dispute between Portugal and Australia, as above, 100. The question does arise why Indonesia did not choose to intervene under Article 62 of the Statute.

[94] [1995] ICJ Reports, 90.

[95] De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory norms in perspective' (1991) 42 Austrian Journal of Public and International Law 183 at 190-1.

[96] See Article 5(3) of the International Law Commission's Draft Convention on State Responsibility [1976] ILC Report 171. As Judge Weeramantry observed, `A disregard of erga omnes obligations makes a serious tear in the web of international obligations', East Timor (Portugal v Australia) [1995] ICJ Reports, 216.

[97] Thus, the ICJ commented in Barcelona Traction Case [1970] ICJ Reports, 3 at 32 in relation to an obligation erga omnes, that `all States have a legal interest in its observance'. The ILC's commentary to Article 19 reads, inter alia, `It follows ... that the responsibility engaged by the breach of these obligations [erga omnes] is engaged not only in regard to the state which was the direct victim of the breach; it is also engaged in regard to all the other members of the international community, so that, in the event of a breach of these obligations, every state must be considered justified in invoking -- probably through judicial channels -- the responsibility of the state committing the internationally wrongful act', Yearbook of the International Law Commission (United Nations, New York and Geneva 1976) II, Part Two, 99. For some of the possible consequences, see Gowlland-Debbas v `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) p 357-59; P Weil `Towards relative normativity in international Law' (1983) 77 AJIL 413; Jimenez de Arechaga E `International law in the past third of the century' (1978-I) 159 Recueil des Cours 1 275. As has already been noted, Judge Weeramantry, ([1995] ICJ Reports, 221) was of the view that an erga omnes right generates a corresponding duty in all States which, in case of non-compliance or breach, can give rise to a claim for redress against that state.

[98] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 56, and see Higgins R `The advisory opinion on Namibia: Which UN resolutions are binding under Article 25 of the Charter?' (1972) 21 ICLQ 270.

[99] [1995] ICJ Reports, 103-4. For criticism, see Scobbie and Drew, `Self-Determination Undeter-mined: The Case of East Timor' (1996) 9 Leichen Journal of International law 185 at 191, 198-204.

[100] Annacker C `The legal regime of erga omnes obligations in international law' (1994) 46 Austrian Journal of Public and International Law at 139, thus reports that there exists a body of opinion that considers the UN to be the recipient of erga omnes rights. De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory

norms in perspective' (1991) 208-11, suggests that there is now an obligation to resort only to collective enforcement since the right of any state to invoke responsibility is fraught with danger. See also Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14, 127. Thus Gowlland-Debbas v `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) 356-57 is of the view that the ICJ was concerned to avoid the appearance of giving encouragement to the use of unilateral forcible counter-measures. It may be that the ICJ held similar concerns in the East Timor Case. Annacker C `The legal regime of erga omnes obligations in international law' (1994) 46 Austrian Journal of Public and International Law 131 at 140-1, 157-61 however, whilst acknowledging that the UN can implement erga omnes obligations, argues that the right to enforcement is only attributable to individual states, vested singly or collectively. She argues that a rule requiring collective enforcement is too ineffective given the decentralised nature of international society. She adds that, `Erga omnes obligations vest a right to the fulfilment of the obligation in the community of States, which according to the traditional theory means in all States individually', as above, 148.

[101] The ICJ's approach in the Namibia Case, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16 at 56, in relation to the termination of the mandate and the declaration of the illegality of South Africa's presence in Namibia, observing that these facts were `opposable to all states in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law'.

[102] East Timor (Portugal v Australia) [1995] ICJ Reports, 209, 215, 221; and 248, 264, 266-67 respectively. Thus, the Declaration on Friendly Relations and Co-operation Among States provides as follows: `Every state has the duty to promote, through joint and separate action, the realisation of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle'. Furthermore, `every State has the duty to respect this right [of self-determination] in accordance with the provisions of the Charter.'

[103] Ibid, 204, 221, per Judge Weeramantry. Note that the Declaration on Friendly Relations and Co-operation Among States provides, inter alia, that, `Every State has the duty to refrain from any forcible action which deprives peoples ... of their right to self-determination and freedom and independence.' See also the Declaration on the Granting of Independence to Colonial Countries and Peoples, para 4. De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory norms in perspective' (1991) 42 Austrian Journal of Public and International Law 183 at 190-1, writes that a state that does not act in conformity with a peremptory norm, which self-determination would appear to be, is in breach thereof and entails international responsibility.

[104] Ibid, 204, 222. By contrast, Judge Skubiszewski considered that the ICJ was not competent to rule on the validity of the treaty itself but instead could look at whether Australia's acts leading to its conclusion and application amounted to an international wrong, compatible with the right to self-determination, ibid, 253-54.

[105] Ibid, 202, 213-14. However, it should be observed that the rights of these parties would not be identical. Thus only Portugal could be a party to the case where it would be representing East Timor's interests, ibid, 135 per Judge Vereshchetin. As a non-state actor the rights of the people of East Timor are limited, see MC van Walt van Praag `East Timor and the international legal order: role of the Unrepresented Nations and Peoples Organization' \tin International Law and the Question of East Timor, B Bowring `Self-Determination and the jurisprudence of the ICJ' in International Law and the Question of East Timor (1995) 151 \tat p 299. It seems that only the administering power possesses international personality with the capacity to exercise rights and duties but it is possible for that power to confer a degree of international status upon the non-self-governing territory: Jennings R Y and Sir Arthur Watts (eds) Oppenheim's International Law, Vol 1 (1992) pp 227-28, 276, 279. But the right of self-determination does confer upon non-self-governing territories qualified international personality which gives rise to a duty on states to respect and realise that right, ibid, 208-16 per Judge Weeramantry. Gowlland-Debbas v `Judicial insights into fundamental values and interests of the international community' in Muller AS et al (eds) The International Court of Justice (1997) pp 349-50, writes that the dicta of the ICJ on collective interests has been limited to its exercise by states.

[106] Ibid, 103. In Judge Weeramantry's opinion, ibid 197, there was no doubt that the right of the people of East Timor to self-determination had been violated,.

[107] In the Nicaragua Case, Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14, 101 the ICJ found that the forcible deprivation of the right of peoples to self-determination, as reflected in Resolution 2625 (XXV), constituted a use of force. See further, paragraphs 3 and 6 of General Assembly Resolution 2131 (XX) 1965, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States; Article 7 of General Assembly Resolution 3314 (XXIX) 1974, Definition on Aggression; Paragraph 2 of General Assembly Resolution 3103 (XXVIII) 1973, Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racist Regimes.

[108] Thus para 2(2) of the Vienna Declaration and Programme of Action states, inter alia, that the `World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realisation of this right.' The ICJ's dictum in the Barcelona Traction Case [1970] ICJ Reports, at 47, that human rights instruments at the universal level `do not confer on states the capacity to protect the victims of infringements of such rights irrespective of their nationality', must now be read with caution as obsolete Gowlland-Debbas `Judicial insights into fundamental values and interests of the international community' in Muller A S et al (eds) The International Court of Justice (1997) 356.

[109] Article 19(3)(b) of the ILC Draft Convention on State Responsibility, ILC Report (1976) 175. According to the working paper submitted to the Commission on Human Rights by Stanislav Chernichenko on the Definition of gross and large-scale violations of human rights as an international crime, UN Doc E/CN.4/Sub.2/10, 7, `International crimes are the most serious violations of international law ... constituting a threat to the entire international community. They constitute breaches of an obligation erga omnes ... At the same time, not every breach of an obligation erga omnes can be regarded as an international crime. The decisive factor is what is infringed -- the fundamental interests of the international community.' He continues that there is no officially recognised definition of an international crime. However, his Draft Declaration defining Gross and Large-Scale Violations of Human Rights as International Crimes did not contain any explicit reference to self-determination, at 13-15. In cases of crime all States, not simply those directly injured, are entitled to invoke the breach. Article 14 of the Draft Convention defines some of the consequences of an international crime, including non-recognition of the legal situation brought about by the crime, and no aid or assistance to the state which has committed the crime in maintaining the situation created by such a crime; ILC Report (1985) 42; Annacker C `The Legal Regime

of Erga Omnes Obligations in International Law' (1994) 46 Austrian Journal of Public and International Law 131 at 152-4. See also, De Hoogh A J J `The relationship between jus cogens, obligations erga omnes and international crimes: peremptory norms in perspective' (1991) 42 Austrian Journal of Public and International Law 183 at 203-5. It should further be noted that according to the Declaration on Friendly Relations and Co-operation Among States the `subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the Charter of the United Nations.'

[110] East Timor (Portugal v Australia) [1995] ICJ Reports, 261-65. See also, 206 per Judge Weeramantry. These statements reflect the principle of international law that territory cannot be acquired by the use of force, Malanczuk P Akehurst's Modern Introduction to International Law (1997) 395-415152, Opinion No 3 of the EC Arbitration Commission on the former Yugoslavia, 92 ILR 170, para 2(4).

[111] Annacker C `The Legal Regime of Erga Omnes Obligations in International Law' (1994) 46 Austrian Journal of Public and International Law 131 at 152-4, suggests four different legal consequences of an erga omnes violation. These are: right to cessation of the wrongful conduct; guarantees against repetition of the wrongful acts; restituto in integrum; and compensation.

[112] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16 at 52-56.

[113] East Timor (Portugal v Australia) [1995] ICJ Reports, 103, 105-106.

[114] Ibid, 103.

[115] Western Sahara Case [1975] ICJ Report 12, 36.

[116] Ibid, 32-3. Thus eg, Principle IX (b) of Resolution 1541 (XV) states that, `The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage'; whereas the Declaration on Friendly Relations and Co-operation Among States provides as follows: `The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people' (emphasis added).

[117] Ibid, 81.

[118] Ibid, 170-1.

[119] Ibid, 123.

[120] Ibid, 122.

[121] Ibid, 173-4.

[122] East Timor (Portugal v Australia) [1995] ICJ Reports, 269.

[123] Ibid, 135.

[124] This would appear to be a reference to the special cases of the Falkland Islands and Gibraltar, see Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) pp 86-88, 206-14.

[125] [1995] ICJ Report, 135-38.

[126] Western Sahara Case [1975] ICJ Report 12, 145.

[127] East Timor (Portugal v Australia) [1995] ICJ Reports, 182-193.

[128] Ibid, 268. See also footnotes 107-109.

[129] Brownlie I Principles of Public International Law (1990) 80, notes 598; Crawford J The Creation of States in International Law (1979) pp 102-103, 118, 261-62.

[130] See Principle VI of Resolution 1541 (XV).

[131] Thus Resolution 2625 (XXV) states that, `The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.'

[132] Western Sahara Case [1975] ICJ Report 12, 32-3.

[133] Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Report 14, 652-3.

[134] Western Sahara Case [1975] ICJ Report 12.

[135] Cassese A Self-Determination of Peoples: A Legal Reappraisal (1995) p 226.

[136] Higgins R Problems and Process: International Law and How We Use It (1994), pp 117-19.