CYIL vol. 14 (2023)

MILAN LIPOVSKÝ CYIL 14 (2023) principle in this article. Judge Schwebel went exactly that direction in his dissenting opinion to the judgment in this case when he stated: The fact that the timing of the finding of the responsibility of the absent party precedes such a finding in respect of the present party, or that the finding of the responsibility of the absent party is a logical prerequisite to the finding of the responsibility of the present party, is not significant. What is dispositive is whether the determination of the legal rights of the present party effectively determines the legal rights of the absent party. 28 After relying on the narrow understanding of the Monetary Gold principle in Certain Phosphates , the Court probably expected criticisms. And it is no surprise that they might logically be articulated by the third possibly affected states whose legal interests would be affected in future proceedings they would not be parties to. The ICJ tried to alleviate them by claiming that its ruling “ does not settle the question whether reparation would be due from [in this case] Australia, if found responsible, for the whole or only for part of the damage. ” 29 The value of such guarantee is however of a very limited quality. Secondary obligations stemming from the violation of the primary one, do not affect the question of whether violation of the primary one forms the subject-matter of the claim (on violation of the primary obligation) or not. What the Court could have done, was to focus on the alleviation of the third state’s fears by referring to the right to intervene. As such, it is no surprise that while the Monetary Gold case judgment was decided unanimously (on the Monetary Gold principle), the majority in Certain Phosphates was 9-4 on this point when rejecting the objection. 30 And the conflict between narrow and wider understanding was mentioned not only by dissenting judges in this case, it also reappeared later (see Judge Tomka’s Separate Opinion analysis in the Nuclear Disarmament cases part). East Timor Case The East Timor Case concerned one of the newest members of the international community, the Democratic Republic of Timor-Leste (a.k.a. East Timor). It was considered a non-self governing territory under chapter XI of the UN Charter governed by Portugal. In 1975, it was, however, occupied by Indonesia, its Western neighbour. Decades later, Indonesia was forced to withdraw, and East Timor became independent in 2002. Before that happened, however, Australia negotiated with Indonesia regarding the continental shelf located between East Timor and Australia. Although the negotiations did not lead to delimitation of the area, a treaty was concluded in 1989 between the two states (Indonesia and Australia) regarding joint exploration and exploitation of it. 31 Thus, Portugal submitted an application claiming that, by concluding and performing the treaty, Australia has violated, among others, its rights as the administering power. Australia, on the other hand, raised several objections, including one claiming that the ICJ lacked jurisdiction and that the claim was inadmissible due to the fact that the dispute concerned rights and duties of a state not party to the dispute. 32 By referring to the legal interests of Indonesia, Australia basically raised the Monetary Gold principle. 28 Dissenting opinion of Judge Schwebel to ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, p. 95. 29 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, para. 39, see also para. 56. 30 Ibid , para. 39, see also para. 72. 31 ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, paras. 17–18. 32 Ibid , paras. 19–20.

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