East Timor Case Digest

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]
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.
icles.
Thursday, April 26, 2012
Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) case brief
Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)


Procedural History:
Action for damages for the expropriation of a corporation.

Overview:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as shareholders of
the Barcelona Traction Co., incorporated and registered in Canada, had been seriously harmed by actions of Spain
(D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose of
developing and operating electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets were seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D) for what it
termed expropriation of the assets of the Traction Co. on the ground that a large majority of the stock of the
company was owned by Belgian (P) nationals.
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages to a Canadian
company.

Issue:
Does the state of the shareholders of a company have a right of diplomatic protection if the state whose
responsibility is invoked is not the national state of the company?

Outcome:
No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first establish
its right to do so. This right is predicated on a showing that the defendant state has broken an obligation toward
the national state in respect of its nationals. In the present case it is therefore essential to establish whether the
losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction were the consequence of the violation
of obligations of which they are beneficiaries.
-In the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations
or special agreements directly concluded between the private investor and the state in which the investment is
placed. Barring such agreements, the obligation owed is to the corporation, and only the state of incorporation has
standing to bring an action for violations of such an obligation. Nonetheless, for reasons of equity a theory has
been developed to the effect that the state of the shareholders has a right of diplomatic protection when the state
whose responsibility is invoked is the national state of the company. This theory, however, is not applicable to the
present case, since Spain (D) is not the national state of Barcelona Traction. Barcelona Traction could have
approached its national state, Canada, to ask for its diplomatic protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action.

Rule:
the state of a shareholders corporation has a right of diplomatic protection only when the state whose
responsibility is invoked is the national state of the company.

Analysis:
The Restatement of the Foreign Relations Law of the United States. 185, states that failure of a state to pay just
compensation for the taking of the property of an alien is wrongful under international law, regardless of whether
the taking itself is conceived as wrongful. Such a wrongful taking is characterized either as tortious conduct or as
unjust enrichment
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), case 91, International Court of Justice (ICJ) Judgement returned on 26
February 2007.
The case before the International Court of Justice (ICJ), the United Nations's highest judicial body, which
exclusively hears disputes between states, related to Serbia's alleged attempts to exterminate the Bosniak
(Bosnian Muslim) population of Bosnia and Herzegovina. It was filed by Dr. Francis Boyle, an adviser to Alija
Izetbegovid during the Bosnian War. The case was heard in the ICJ court in The Hague, Netherlands, and ended on
9 May 2006.
The ICJ presented its judgment on 26 February 2007, in which, among other things, it confirmed the ICTY judgment
that the Srebrenica massacre was genocide, stating:
The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention
were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as
such; and accordingly that these were acts of genocide, committed by members of the VRS in and around
Srebrenica from about 13 July 1995.
[1]

The Court found - although not unanimously - that Serbia was neither directly responsible for the Srebrenica
genocide, nor that it was complicit in it, but it did rule that Serbia had committed a breach of the Genocide
Convention by failing to prevent the genocide from occurring and for not cooperating with the ICTY in punishing
the perpetrators of the genocide, in particular General Ratko Mladid, and for violating its obligation to comply with
the provisional measures ordered by the Court.
[1][2]
The Vice-President of the Court dissented on the grounds that
"Serbias involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported
by massive and compelling evidence."
The Court found:
(1) by ten votes to five, Rejects the objections contained in the final submissions made by the Respondent [Serbia]
to the effect that the Court has no jurisdiction; ...

(2) by thirteen votes to two, Finds that Serbia has not committed genocide, through its organs or persons whose
acts engage its responsibility under customary international law, in violation of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide;

(3) by thirteen votes to two, Finds that Serbia has not conspired to commit genocide, nor incited the commission
of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of
Genocide;

(4) by eleven votes to four, Finds that Serbia has not been complicit in genocide, in violation of its obligations
under the Convention on the Prevention and Punishment of the Crime of Genocide;

(5) by twelve votes to three, Finds that Serbia has violated the obligation to prevent genocide, under the
Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred
in Srebrenica in July 1995;

(6) by fourteen votes to one, Finds that Serbia has violated its obligations under the Convention on the Prevention
and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladid, indicted for genocide and
complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having
failed fully to co-operate with that Tribunal;

(7) by thirteen votes to two, Finds that Serbia has violated its obligation to comply with the provisional measures
ordered by the Court on April 8 and September 13, 1993 in this case, inasmuch as it failed to take all measures
within its power to prevent genocide in Srebrenica in July 1995;

(8) by fourteen votes to one, Decides that Serbia shall immediately take effective steps to ensure full compliance
with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish
acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the
Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International
Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal;

(9) by thirteen votes to two, Finds that, as regards the breaches by Serbia of the obligations referred to in
subparagraphs (5) and (7) above, the Court's findings in those paragraphs constitute appropriate satisfaction, and
that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to
in subparagraph (5), a direction to provide assurances and guarantees of non-repetition, would be appropriate.