East Timor (Portugal v.

Australia)

OVERVIEW OF THE CASE

On 22 February 1991, Portugal filed an Application instituting proceedings against Australia

concerning “certain activities of Australia with respect to East Timor”, in relation to the conclusion, on
11 December 1989, of a treaty between Australia and Indonesia which created a Zone of Co-operation
in a maritime area between “the Indonesian Province of East Timor and Northern Australia”. According
to the Application, Australia had by its conduct failed to observe the obligation to respect the duties
and powers of Portugal as the Administering Power of East Timor and the right of the people of East
Timor to self-determination. In consequence, according to the Application, Australia had incurred
international responsibility vis-à-vis the people of both East Timor and Portugal. As the basis for the
jurisdiction of the Court, the Application referred to the declarations by which the two States had
accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its
Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the
admissibility of the Application.

The Court delivered its Judgment on 30 June 1995. It began by considering Australia’s objection that
there was in reality no dispute between itself and Portugal. Australia contended that the case as
presented by Portugal was artificially limited to the question of the lawfulness of Australia’s conduct,
and that the true respondent was Indonesia, not Australia, observing that Portugal and itself had
accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, but
that Indonesia had not. The Court found in that respect that there was a legal dispute between the two
States. The Court then considered Australia's principal objection, to the effect that Portugal’s
Application would require the Court to determine the rights and obligations of Indonesia. Australia
contended that the Court would not be able to act if, in order to do so, it were required to rule on the
lawfulness of Indonesia’s entry into and continuing presence in East Timor, on the validity of the 1989
Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that
Treaty, even if the Court did not have to determine its validity. In support of its argument, Australia
referred to the Court’s Judgment in the case concerningMonetary Gold Removed from Rome in 1943.

After having carefully considered the arguments advanced by Portugal which sought to separate
Australia’s behaviour from that of Indonesia, the Court concluded that Australia’s behaviour could not
be assessed without first entering into the question why it was 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 the continental shelf. The
Court took the view that it could not make such a determination in the absence of the consent of
Indonesia.

The Court then rejected Portugal’s additional argument that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect
them. In the Court’s view, Portugal’s assertion that the right of peoples to self-determination had
an erga omnes character, was irreproachable, and the principle of self-determination of peoples had
been recognized by the Charter of the United Nations and in the jurisprudence of the Court, and was
one of the essential principles of contemporary international law. However, the Court considered that
the erga omnes character of a norm and the rule of consent to jurisdiction were two different things,
and that it could not in any event rule on the lawfulness of the conduct of a State when its judgment
would imply an evaluation of the lawfulness of another State which was not a party to the case.

The Court then considered another argument of Portugal which rested on the premise that the United
Nations resolutions, and in particular those of the Security Council, could be read as imposing an
obligation on States not to recognize any authority on the part of Indonesia over East Timor and, where
the latter is concerned, to deal only with Portugal. Portugal maintained that those resolutions would
constitute “givens” on the content of which the Court would not have to decide de novo. The Court
took note, in particular, of the fact that for the two Parties, the territory of East Timor remained a non-
self-governing territory and its people had the right to self-determination, but considered that the
resolutions could not be regarded as “givens” constituting a sufficient basis for determining the dispute
between the Parties. It followed from all the foregoing considerations that the Court would necessarily
first have to rule upon the lawfulness of Indonesia’s conduct. Indonesia’s rights and obligations would
thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent,
which would run directly counter to the principle according to which “the Court can only exercise
jurisdiction over a State with its consent”. The Court accordingly found that it was not required to
consider Australia’s other objections and that it could not rule on Portugal’s claims on the merits.

SUMMARY OF JUDGEMENT

JUDGEMENT
 Summaries of the Decisions

Case Concerning East Timor

(Portugal v. Australia)
Judgment of June 30, 1995
On 22 February 1991 Portugal had instituted proceedings against Australia concerning "certain
activities of Australia with respect to East Timor". Portugal acted as the administering Power over
East Timor in accordance with Chapter XI of the Charter of the United Nations. Portugal claimed that
Australia, by the conclusion of a Treaty of "Cooperation in an area between the Indonesian Province
of East Timor and Northern Australia of 11 December 1989", had failed to observe the obligation to
respect the powers and duties of Portugal as the administering Power of East Timor, as well as the
right of the people of East Timor to self-determination and the related rights. Australia, according to
Portugal's allegations, had thereby incurred international responsibility vis-à-vis both the people of
East Timor and Portugal, which claimed to have remained the administering Power according to
several resolutions of the General Assembly and the Security Council, even though it had left East
Timor definitely when Indonesia invaded East Timor in 1975. As the basis of jurisdiction Portugal
referred to the declarations of both States according to Art. 36 paragraph 2 of the Statute. Australia
objected to the jurisdiction of the Court and the admissibility of the application. The central issue for
the Court was whether the 1989 Treaty could have been legally concluded between Indonesia and
Australia or whether Portugal alone was empowered to conclude treaties on behalf of East Timor.
Thus, the main question was whether the Court could decide the case in the absence of Indonesia
which had not accepted the jurisdiction of the Court and was not inclined to intervene in the case.
Australia argued that the Court was confronted with a situation comparable to that in the Monetary
Gold Case, namely that the Court would have to decide on the lawfulness of Indonesia's entry into
and continuing presence in East Timor as well as the lawfulness of the conclusion of the Treaty,
what could not be done in the absence of Indonesia. While Portugal agreed in principle on this point,
it disagreed that the Court had in fact to decide on the forementioned questions. Portugal argued
that the Court had only to judge upon the objective conduct of Australia, which consisted in having
negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that this
question was perfectly separable from any question relating to the lawfulness of the conduct of
Indonesia.
In its judgment, however, the Court concluded that Australia's behaviour could not be assessed
without first entering into the question of why Indonesia could not lawfully have concluded the 1989
Treaty, while Portugal allegedly could have done so. The Court was of the opinion that the very
subject-matter of the decision would necessarily be a determination of whether Indonesia could or
could not have acquired the power to conclude treaties on behalf of East Timor relating to the
resources of its continental shelf. Such a determination, however, could not be made without the
consent of Indonesia.
The Court also rejected Portugal's additional argument that the rights which Australia had allegedly
breached were rights erga omnes and as such permitted Portugal to sue Australia individually,
regardless of whether or not another State had conducted itself in a similarly unlawful manner. The
Court fully shared the assertion of Portugal that the right of peoples to self-determination had
an erga omnes character. Nevertheless, the Court considered that the erga omnes character of a
norm and the principle of consent to the Court's jurisdiction were 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 judgment would imply an evaluation of the lawfulness of the conduct of another State not a
party to the case.
The Court likewise dismissed the argument of Portugal that the United Nations resolutions
concerning the status of Portugal as administering Power were imposing upon all States an
obligation not to recognize any authority of Indonesia over East Timor. The Court found that without
prejudice to the question of the binding or non-binding nature of these resolutions such an obligation
could not be inferred from those resolutions. Therefore, the Court would have necessarily to rule
upon the lawfulness of Indonesia's conduct as a prerequisite for deciding Portugal's contention that
Australia violated its obligation to respect Portugal's status as administering Power and East Timor's
status as a non-self governing territory and the right of 7its people to self-determination and to
permanent sovereignty of its natural resources. Thus, the rights and obligations of Indonesia would
constitute the very subject-matter of the case and could only be judged with the consent of
Indonesia. Since this consent was lacking, the Court had to dismiss the case, despite the importance
of the questions raised.