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International Law: States’ Right to Self-Determination

In this case concerning a state C exploited by state A with the permission of state B, state P initiates proceedings against A with regard to resources and land belonging to the impoverished state C. It is worth noting that state P represents an administering power over the state C despite the fact that its power was overruled by state B’s military invasion. The proceedings are regarded by the International Court of Justice (ICJ) that has to rule on the validity of state P’s claims about the unlawfulness of the exploitation. State A claims state B’s responsibility whereas state B refuses to partake in the case whatsoever.

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The case bears a strong resemblance to the proceedings regarding the East Timor case, where the ICJ had to decide on the relevance of Portugal’s claims in the absence of Indonesia and account for the Timorese people’s right to self-determination (East Timor n.d.). The historical background of the East Timor case allows Noam Chomsky (2015, p. 99) to analogize it with the Kosovo ‘massacre’. Other publicists support this point enlisting it as one of the factors a universally recognized conception of self-determination is necessary, the reason being the Timorese had their rights violated for a significant period of time (Rance 2013). With regard to self-determination, the ICJ had to regard the status of East Timor within the frames of the International Law. To be more exact, this status was established by the principle of self-determination as per the U. N. Charter that prohibited outer intervention and any breach of the wholeness of the territories (Aust 2010). In fact, the ICJ has pressed the non-predominance of Portugal over East Timor partially with regard to Indonesia’s refusal to come before the Court and due to its lack of jurisdiction over the absent party.

This basic principle presupposes that a state exists as a separate entity, with the state’s government practicing power over its human, financial, territorial, and other resources (O’Brien 2001). The primary implication of this principle is the fact of the ICJ’s inability to put a state under its jurisdiction without this state’s consent. The ICJ has been known to rely on this principle in the Lotus case of as far as 1927, when it observed that the ‘restrictions upon the independence of States cannot therefore be presumed’ (O’Brien 2001, p. 48). The meaning of such observation is that the court cannot reach a decision in a case involving two states without the states’ consent. This same principle was deployed in the infamous case of ‘Monetary Gold’, where the ICJ decided – unanimously – that Italy’s claim against Albania cannot be arbitrated (Aust 2010, p. 421). As a result, with the jurisdiction issue concerned, the ICJ found itself unable to regard Portugal’s claim against Australia in the absence of Indonesia – at least, not until it was decided whether the treaty signed by Australia and Indonesia was relevant or not.

The treaty that concerned the exploration and exploitation of East Timorese resources was signed in 1989 by Australia and Indonesia. According to this treaty, both sides could explore the resources discovered in the area known as the ‘Timor Gap’; neither the people of East Timor nor Portugal were consulted, at that. The objection of Portugal concerned Australia’s breach of Portugal’s status and powers as an administrator of the area. Australia replied that the ICJ had to rule out a decision based on the lawfulness of the actions of Indonesia, the party that refused to appear before the Court and therefore did not fall under its jurisdiction. Also, the defendant party asserted that Indonesia had a right to go into treaties on behalf of East Timor, which is why there could be no real argument between Portugal and the defendant party (Burchill n.d.).

Analogizing the given case of state A vs. state P and the case of East Timor as well as the Court’s statements over other cases, it is true to say that the State A could have gone into a treaty with state P considering it a legal authority over state C and given that state B performed an abuse of power and human rights. Also, as it was pointed out by state P, the people of state C have the right to self-determination, albeit under state P’s administration, which has an erga omnes character. Consequently, the ICJ should rule out basing its decision on the condition of the lawfulness of state B’s conduct, state B representing an administrative power over the impoverished state C. However, it would contradict the basic principle of jurisdiction, should the ICJ decide on the case without the state B’s consent. Also, given that state B represented an administrative power over state C, it had a duty to protect the state’s resources and territorial integrity. It was a duty which state B violated by mistreating the state C’s human rights and signing an agreement with state A for self-interested aims. Thus, the ICJ should not regard the agreement as legal under the International Law.

References

Aust, A 2010, Handbook of International Law, 2nd edn, Cambridge University Press, Cambridge, UK.

Burchill, R n.d., The ICJ Decision in the Case Concerning East Timor: The Illegal Use of Force Validated? Web.

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Chomsky, N 2015, New Generation Draws the Line: Kosovo, East Timor, and the “Responsibility to Protect” Today, Routledge, London, UK.

East Timor (Portugal v. Australia) n.d., Web.

O’Brien, J 2001, International Law, Routledge, London, UK.

Rance, A 2013, ‘What are the Benefits and Drawbacks of Adopting a Universal Understanding of Human Rights?’, University of Leeds Human Rights Journal, vol. 1, no. 1, pp. 1-8.

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