East Timor (Portugal v. Australia)

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 concerning Monetary 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.