CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE The matter is similar to the Monetary Gold case from the temporal point of view. In other words, in order to find out whether Australia violated the rights of Portugal, the ICJ would have to first assume its position whether Indonesia’s control of East Timor’s territory was legal 33 or not and thus whether it was entitled to negotiate regarding the territorial rights of East Timor. The ICJ has in fact accepted that line of argumentation and stated that: Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court’s decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. 34 Despite some contrary opinions, 35 it is an obvious example of an application of the Monetary Gold principle even in its confirmed narrow understanding. That was clearly a problem for Portugal and so it attempted to circumvent its procedural problem by basically differentiating from the Monetary Gold case. Without doing so, it was clearly not going to succeed due to the temporally preceding conditioning, because the Monetary Gold principle was (unlike in Certain Phosphates ) fulfilled. Thus, Portugal tried another path and by doing so opened a new, until now unaddressed question. It correctly claimed that in the Monetary Gold case no relevant international body has made an evaluation upon the legality of the Albanian legislation and whether it had violated Italian rights or not. In the present case, however, there have been numerous resolutions of both the UN General Assembly and the UN Security Council that have expressed opinions regarding the legality of Indonesian presence within East Timor. The alleged difference thus rested in no need of a new determination of the preceding question that forms the very subject-matter of the claim (and is at the same time relevant for the legal interests of a third state that has not given consent to the exercise of jurisdiction by the ICJ, i.e., Indonesia in the present case). The ICJ did not explicitly reject this line of argumentation. Instead, it claimed that it could not succeed because the mentioned resolutions (taking their content into account) could not have been interpreted as creating an obligation not to recognize the Indonesian authority over East Timor, including negotiating and performing treaties concerning the territory. 36 Although the ICJ upheld the Monetary Gold principle as it understood it in previous case law, what remains interesting is that the Court did not rule out that, should the (i)legality of Indonesian presence within East Timor was “a given”, i.e., an issue already previously settled in a proper form by clear statements, it could in fact entertain the claim without Indonesia being a party to the proceedings. 37 33 CRAWFORD, J., Brownlie’s Principles of Public International Law . 8 th ed., Oxford: OUP, 2012, p. 699. 34 ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, para. 28. 35 For example, expressed in the Dissenting opinion of Judge Skubiszewski to ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995 and the Dissenting opinion of Judge Weeramantry to the same judgment, basically stating that the claims (against Australia and Indonesia) are separable. 36 ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, para. 31. 37 For a conclusion that “a given“ might constitute an exception to the application of the Monetary Gold principle, see PCA, Larsen v. Hawaiian Kingdom , 1999-01, Award (5 February 2001), para. 11.24.

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