Summaries of Judgments, AdvisNot an official documentof the Internationa
l Court of Justice
CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA)
Judgment of 30 June 1995
In its Judgment in the case concerning East Timor (Por- had "incurred international responsibilitvis-his both the
tugal v.Australia), the Court, by 14 votes to:!,found that people of East Timor and Portugal". Asthe basis for the
it cc~uldnot exercise the jurisdiction conferred upon it by jurisdiction of the Court, the Application refers to the dec-
the'declarations madebythe Parties under Article 36, para- larations by which the two States have accepted the com-
graph 2, of its Statute to adjudicate upon the dispute re- pulsory jurisdiction of the Court under Article 36, para-
fem:d to it by the Application of the Portuguese Republic. graph 2, of its Statute. In its Counter-Memorial, Australia
Those who voted IN FAVOUR were: President Bedjaoui; raised questions concerning the jurisdiction of the Court
Vice-President Schwebel; JudgesOda, Sir Robert Jennings, and the admissibility of the Application. In the course of a
Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva, meeting held by the President of the Court, the Parties
Herczegh, Shi, Fleischhauer, Koroma, V~:reshchetin; agreed that these questions were inextricably linked to the
Judge ad hoc Sir Ninian Stephen. merits and that they should therefore be heard and deter-
AGAINST J: dgeWeeram,mtly;JudgeadhocS,kubiszewski. mined within the framework of the merits. The written
proceedings having been completed in July 1993,hearings
were held between 30 January and 16 February 1995.
The Judgment then sets out the final submissions which
were presented by both Parties in the course of the oral
Ju.dgesOda, Shahabuddeen, Ranjeva, and Vereshchetin proceedings.
appe:ndedseparate opinions to the Judgment of the Court.
Judge Weeramantry and Judge ad hoc Skubiszewski Historical background
appended dissenting opinionsto the Judgment oftheCourt. (paras. 11-18)
The Court then gives a short description of the history
of the involvement of Portugal and Indonesia in the Terri-
tory of East Timor and of a number of Security Council
and General Assembly resolutions concerning the question
Proceduralhistog1 of East Timor. It furtherdescribcsthe negotiations between
(paras. 1-10) Australia and Indonesia leadingto the Treaty of 11Decem-
ber 1989,which created a "Zone of Cooperation ... in an
In its Judgment, the Court recalls that on 22 February area between the Indonesian Province of East Timor and
1991Portugal institutedproceedings against Australiacon- Northern Australia".
cerning "certain activities of Australia with respect to East
Tirnor". According to the Application Austra1i.ahad, by its
conduct, "failed to observe ... the obligatioi~to respect Summary ofthecontentions oftheParties
the dlutiesand powers of [Portugal as] the administering (paras. 19-20)
Power [of East Timor] .. .and ... the right o:Fthe people
of East Timor to self-determination and the related rights". The Court then summarizesthe contentions of both Par-
In consequence, according to the Application, Australia ties.
Continued on next pageAustralia's objection that there exists in realiy no dispute vidually,to respectthem regardlessofwhetherornotanother
between the Parties State had conducted itself in a similarly unlawful manner.
(paras. 21-22)
In the Court'sview, Portugal's assertion thatthe right of
The Courtgoes on to consider Australia's objection that peoples toself-determination,as it evolvedfromthe Charter
there is in reality no dispute between itself and Portugal. of the United Nationsand from United Nations practice, has
Australia contends that the case as presented by Portugal an erga omnescharacter,is irreproachable. The principleof
is artificially limited to the question of the lawfulnessof self-determinationof peoplehsasbeenrecognizedbythe Char-
Australia's conduct, and that the true respondent is Indo- terandinthejurisprudence oftheCourt;itisoneofthe essential
nesia, not Australia. Australia maintains that it is being principles of contemporary internationallaw.However,the
sued in place of Indonesia. Inthis connection, it pointsout Court considers thattheerga omnescharacterof a norm and
that Portugal and Australia have accepted the compulsory the rule of consent tojurisdiction aretwo different things.
jurisdiction of the Court under Article 36, paragraph 2,of Whateverthe nature ofthe obligations invokedt,heCourtcould
its Statute, but that Indonesia has not. not rule onthe lawfulnessof the conductof a Statewhen its
judgment wouldimplyanevaluationof the lawfulnessofthe
The Court finds in this respect that for the purpose of conduct of another State whichis not a party to the case.
verifying the existence of a legal dispute in the present
case,it is not relevant whetherthe "real dispute" is between The Court goes onto consider another argument ofPor-
Portugal and Indonesia rather than Portugal and Australia. tugal which, the Court observes, rests on the premise that
Portugal has, rightlyor wrongly, formulated complaintsof the United Nations resolutions, and in particular those of
fact and law against Australia which the latter has denied. the SecurityCouncil, can be readas imposing an obligation
By virtue of this denial, there is a legal dispute. on Sta.tesnot to recognize any authority on the part of
1ndone:siaover East Timor and, where the latter is con-
Atistralia's objection that the Court is required to deter- cerned, to deal only with Portugal. Portugal maintains that
nzinethe rights and obligations of Indonesia those resolutions would constitute "givens" on the content
(paras. 23-35) of which the Court would not haveto decide de novo.
The Court takes noteof the fact that, for thetwo Parties,
The Courtthen considers Australia's principal objection, the Territory ofEast Timor remains a Non-Self-Governing
to the effect that Portugal's Application would requirethe Territory and its peoplehasthe right to self-determination,
Court to determine the rightsand obligations of Indonesia. and that the express referenceto Portugal as the "admin-
Australia contends thatthejurisdiction conferred upon the istering Power" in a number of the above-mentioned reso-
Court by the Parties' declarations under Article 36, para- lutionsisnotat issue between themT. heCourt finds, however,
graph 2,of the Statutewould not enablethe Courtto act if, that it cannot be inferred fromthe sole fact that a number
in orderto do so,the Courtwererequiredto rule onthe law- of resolutions of the General Assembly and the Security
fulness of Indonesia's entry into and continuing presence Council refer to Portugal as the administering Power of
in East Timor, on the validity of the 1989Treaty between
Australia and Indonesia,or onthe rights and obligations of East Timor that they intendedto establish an obligationon
Indonesiaunderthat Treaty, even ifthe Court did not have third States to treat exclusively with Portugal as regards
to determineits validity.In supportof itsargument,it refers the continental shelf of East Timor. Without prejudice to
totheCourt'sJudgmentinthecaseof MonetaryGoldRemoved the question whether the resolutions under discussion
@om Rome in 1943. Portugal agrees that ifits Application could be binding in nature, the Court considersas a result
required the Court to decide any of these questions, the that they cannot be regarded as "givens" which constitute
Court couldnot entertain it.The Parties disagree, however, a sufficient basis for determining the dispute between the
as to whether the Court is requiredto decide any of these Parties.
questions in order to resolve the dispute referred to it. It fi~llowsfrom this that the Court would necessarily
have to rule upon the lawfulness of Indonesia's conductas
Portugal contends first thatits Application is concerned a prerequisite for deciding on Portugal's contention that
exclusively withthe objective conductof Australia, which Australia violated its obligationto respect Portugal'sstatus
consists in having negotiated, concluded and initiated per- as administering Power, East Timor's statusas a Non-Self-
formance of the 1989 Treaty with Indonesia,and that this Governing Territory and the rightof the people ofthe Ter-
question is perfectly separable from any question relating ritory to self-determination and to permanent sovereignty
to the lawfulness ofthe conduct of Indonesia. over its wealth and natural resources. Indonesia's rights
Having carefully considered the argument advanced by
Portugalwhich seeksto separateAustralia's behaviour from and obligationswouldthus constitutetheverysubject-matter
that of Indonesia, the Court concludes that Australia's of such ajudgment madein the absence of that State's con-
behaviour cannotbe assessed without first entering intothe sent. Such a judgment would run directly counter to the
questionwhyit isthat Indonesiacouldnotlawfullyhavecon- "well-established principle of international law embodied
cluded the 1989Treaty,while Portugal allegedly could have in the Court'sStatute, namely, thatthe Court can only exer-
doneso;theverysubject-matteroftheCourt'sdecisionwould cisejurisdictionovera Statewithitsconsent" (MonetaryGold
necessarilybe a determination whether, havingregardto the Removedfront Romein 1943, I.C.J. Reports 1954, p. 32).
circumstancesin which Indonesia enteredand remained in Conclrrsions
East Timor,it couldor couldnot have acquiredthe power to (paras..36-37)
enterinto treaties on behalfof EastTimor relatingto the re-
sourcesofitscontinentalshelf.TheCourt couldnotmakesuch The Court accordingly finds that it is not required to
a determinationin the absence of the consent of Indonesia. consider Australia's other objectionsandthat it cannotrule
The Court rejects Portugal's additional argumentthatthe on Portugal's claims on the merits, whatever the impor-
rights which Australia allegedly breached were rights erga tance of the questions raised by those claims and of the
omnes and that accordingly Portugal could requireit, indi- rules of international law whichthey bring into play. 'TheCourt recalls in any event that it has taken note in or would maintain thatas such it may lay claimto the conti-
the:Judgment that, for the two Parties, the Territory of East nental shelf offthe coast of East Timor". Portugal therefore
Timor remains a Non-Self-Governing Territory and its lacks standingas anApplicant Statein this proceedingwhich
people has the right to self-determination. relates to the continental shelf extending southward into the
Timor Seafromthe coastof East Timorin the "TimorGap".
Separute opitrionof Judge Odr;!
Separate opinion ofJzidgeShahabuddeen
Judge Oda, while agreeing that Portugal's Application
shouldbe dismissed,as the Court lacksjurisdictionto enter- In his separate opinion, Judge Shahabuddeen added that
taiinit, considers that its dismissal should riot have been thejudgment requested by Portugal would not only involve
based upon the absence of Indonesia's consent, as in the the determination of a question of the international respon-
Court's Judgment, but upon the sole consideration that sibility of an absent State; it would involve the determina-
Portugal lacked locus stundi. tion of its rights under a Treaty to which it is a party, as
well asthe determination ofthe validity of the Treaty itself.
,4fter examining Portu~gal'scomplaint, Judge Oda con-
cludes that Portugal "has given an incorrect definition of
the dispute and seems to have overlooked (:hedifference Separate opinionof Judge Ranjeva
betweenthe opposability toany Stateof its rights and duties Judge Ranjevawholly approvesof the Courtfor recalling
as the administering Power or of the rights of the people that the right of peoples to self-determination is one of the
of East Timor and the tmre basic questionof'whether Por-
tugal is the State entitled to assert these rights and duties". essentialprinciplesofcontemporaryinternational law, possess-
He further points out that the right of the people of East ingthe characteristicof anabsoluterightergaomnes,and for
Tirnorto self-determination and the related ri.ghtshave not upholdingAustralia's firstobjectiontotheeffectthat Portugal's
been challenged by Australia and, in any evc:nt,cannot be Applicationwould obligethe Courtto rule on the rightsand
made an issue in the present case. That citse relates in obligations of Indonesia. According to Judge Ranjeva, the
JuclgeOda's view solely ,tothe title to the corltinentalshelf rights and obligationsof Indonesiaat issue concernreleasing
which Portugal claims to possess as a coastal State. Australia from its obligations vis-A-visIndonesia and de-
priving Indonesiaof the benefitof the effectsofthe principle
Judge Oda goes on to note that in the area of the "Timor pacta suntservanda, which it is entitled to expect from the
Gap" Australia has not asserted a new claim to any seabed 1989Timor Gap Treaty, whose validith yasnotbeendisputed.
area intruding into the arcs of any State or of the people of The consensual natureof internationaljurisdiction prohibits
the Territoryof East Tima,r,nor hasit acquiredany new sea- the Court from adjudicating on the legal interests of a State
bedlareafrom any Stateor from thatpeople.The continental which has not clearly expressed its consent tojurisdiction.
shelvesof Australiaand of the opposite Stateoverlap some-
wh,erein the middle of ,the "Timor Gap", ;md Austialia According to the analysis of the jurisprudence of the
shouldanddid negotiatethequestionofthatov1:rlappingwith Monetary Gold case made by Judge Ranjevain his separate
the coastal State lying opposite to it across the Timor Sea. opinion, a prior decision, in the sense understood in the
Judgmentof 1954,is essentialwhen subjective rights arethe
The central question in.the present case is whetherPor- object of that prior decision; he voices reservations regard-
tugal or Indonesia, as a State lying opposite to Australia, ing the transposition of this rule were the prior decision to
was entitled to the continental shelf in the "'rimor Gap". concern a question of an objective right erga omnes. This
From a survey of events in relationto the delimitationof question required additional explanation sincejus cogens
the continentalshelf inthe relevant area-,it- mearsthat since falls within the urovince of positive law.
the 1970sIndonesia claimed thestatusof a coastal State for
EastTimorand,assuch,negotiatedwith Austra'liaI.fPortugal Lastly, Judge Ranjevaenumerates a number of questions
hadalso claimedthat status,itcouldandshouldhave initiated which remained open and unanswered by virtue of the
a disputeoverthe correspondingtitle to the continental shelf methodological choice made by the Court, examples being
witlzIndonesia,but not with Australia.Not unlessand until the possibility of an interpretation limiting the domain of
suc'htimeasPortugalhadbeenestablishedashavingthestatus the Court's jurisdiction rationejuris solely to disputes
of the coastalState entitledto the correspondillgcontinental involving subjective rights, the definition of the notion of
shelfcouldanyissue concerning the seabed areaofthe "Timor the third parties falling within the residual categoexterior
Gal)" have been the subject-matter of a dispute between to the circle of the Parties. For Judge Ranjeva, determining
the framework for the development of international law is
Portugul and Azrstralia.Had that been the ca.se,the treaty part of the Court's "scientific responsibility".
between Australia and Iyndonesiawould certainly have
been null and void from the outset. The reliance-of the Separate opinion of Judge Vereshchetin
Judgment on the principle of the required consent of the
third party to the Court'sjurisdiction (as exemplified in the In his separate opinion, Judge Vereshchetintakesthe view
Mo.rtetatyGold case) accordingly seems to ba irrelevant. that since the right of the people of East Timor to self-
PL further historical survey shows that, in Judge Oda's determination lies at the core of the whole case, the Court
view, "while the military intervention of Indonesia in East shouldhavehadreliable evidenceonhow farthe Application
Tinlorandthe integrationof EastTimor into Indonesiainthe was supported by that people. The necessity for the Court
mid.-1970swere not approved by the United Nations, there to have this evidence was only reinforced by the fact that
hasnot beenany reasonto assumethat Portugalhas, sincethe the other Party inthe dispute soughtto disclaimthe alleged
late 1970sand upto the presenttime,beenentnistedwiththe disregard of the legal rights and interests of the people of
rights and responsibilitiesof an administering;Powerfor the East Timor as well as the rights consequential to the status
Non-Self-GoverningTerritory of East Timor. :FewStates in of Portugal as administering Power. However, neither in
the international communityhaveinthe recentpast regarded, the written pleadings nor in the course of the oral argu-
or atpresentregard,Portugalasa Statelocated.inEast Timor ments has the Court been provided with such evidence. Although the Charterofthe United Nationsdoes not ex- which continues to beso recognizedby the United Nations
plicitly imposeonthe administering Powerthe dutyto con- are not lost by the mere circumstance of loss of physical
sult the people of a Non-Self-Governing Territory when control, for such a proposition would run contrary to the
the matter at issue directly concerns that people, inthe protective scheme embodied in the Charter of the United
view of Judge Vereshchetin thejurisprudence of the Court Nations for the care of Non-Self-Governing Territories.
shows that such a duty does exist in international law at
the present stage of its development and inthe contempo-
rary setting of the decolonization process.The above duty Dissenting opinionofJudge Skubiszewski
In Judge Skubiszewski's view, the Court hasjurisdiction
may be dispensed with only in exceptional cases, which in this case and the Portuguese claims are admissible.The
cannot be held to apply in the present case. requirements ofjudicial propriety are also met. The Court
The lack of any evidence as to the view of the people of can render a decision on the merits.
East Timor, on whose behalf the Application has been
filed, is one of the principal reasons leadingto the inability Inparticular, eveniftheCourt findsitselfwithoutjurisdic-
of the Court to decide the dispute. tiontoadjudicateonanyissue relatingto theTimorGapTreaty,
the Court could deal with the first submissionof Portugal,
Dissenting opinion of Judge Weeramantry i.e., with the status of East Timor, the applicabilityto that
Temtoryoftheprinciple of self-determinatioa nndsomeother
Judge Weeramantry,in his opinion, expresses agreement basic principlesof international law, andthepositionof Por-
with the Court's decision dismissing the objection that no tugal as administering Power. This is so because the first
real dispute exists between Australia and Portugal.He also submission canbe separatedfromtheremaining submissions
agrees with the stress laid by the Court on the importance which concern exclusively the specificissuesofthe Treaty.
of self-determinationas "one of the essential principles of Itistrue thattheCourtreferstothe statusoftheTerritoryand
contemporary international law". to self-determination,andinthis respect Judge Skubiszewski
However, he differs from the majority of the Court on concurs with the Court (as he also does in regard to the
Court's rejection of the Australian objection that there is
the question whether the Court lacks jurisdiction onthe no dispute between the Parties). But Judge Skubiszewski
ground that a decision against Australia would involvea thinksthat theCourtshouldhaveelaborated on these matters
decision concerning the rightsof Indonesia, a third State, (as there are some unclear points) and includedthe result
not before the Court. of such elaboration in the operative clause. By not doing
The opinion analyses the Monetary Gold decision and so, the Court adopteda narrow view of its function.
the prior and subsequentjurisprudence onthis matter, and
concludesfromthis analysisthat, having regardtothe facts The MonetaryGoldrule does not excludejurisdiction in
of this case, the Monetary Gold decision is not relevant this case. The premise for the application of the rule is
inasmuch as the Court could determinethe matter before lacking bere: to decide on all the submissionsof Portugal, '
it entirely on the basis of the obligations and actions of the Court need not adjudicate on any powers, rights and
Australia alone, without any need to makean adjudication duties o:fIndonesia. In this case the Court adopted an ex-
on the conduct of Indonesia. A central principle of State tensive interpretationofthe MonetaryGoldrule; this inter-
responsibility in international law isthe individual respon- pretation contrasts with its earlier practice. The Court has
sibility of a State for its actions, quite apart fromthe com- gone beyond the limit of the operation of MonetaryGold.
plicity of another State in those actions. The Courtcan decide on thelawfulnessofsomeunilateral
acts of Australia leadingto the conclusionof the Treaty. A
The Respondent State's actions,in negotiating, conclud- decision thereon does not imply any adjudicationon Indo-
ing and initiating performance of the Timor Gap Treaty
and taking internal legislative measuresfor its application, nesia,nor does it involve any finding on the validityof the
are thus justiciable on the basisof its unilateral conduct. Treaty (which the Court is not competentto make). The
The rights of self-determination and permanent sovereignty conduct of Australia can be assessedin the light of United
overnatural resources are rightsergaomnesbelongingto the Nations law and resolutions. Such assessmentis not linked
peopleofEastTimor,andthereforegeneratea corresponding to any passing upon Indonesia's activities.
duty upon all States, includingthe Respondent,to recognize Portugal has the capacityto act before the Court in this
and respectthose rights. The act of beingartyto a treaty rec- case on behalf of East Timor and to vindicate the respect
ognizing thatEast Timor (admittedlya Non-Self-Governing for its position as administering Power.
Temtory andrecognizedas suchby the United Nations)has In discussing and defining the present statusof the Ter-
been incorporated in another State, which treaty deals witah ritory (i.e., after annexation by Indonesia), the rule of
valuablenon-renewable resourceofthe peopleof EastTimor
non-recognition is relevant. In the instance of East Timor,
for an initial period of0 years, without referenceto them recognition of annexation erodes self-determination.The
or their authorized representative, raises substantialdoubts position of Portugal as administering Power was ques-
regardingthecompatibilityoftheseactswiththerightsofthe tioned by Australia; the Court should have clarifiedthis
people of East Timor and the obligationsof Australia. The issue.It is within itsjurisdiction.
Court couldhave proceededto determinewhetheracourseof Even if the Court's Judgment is legally correct (which
action had been madeout against Australia on such actions, it is not), the Court's function cannot be reducedto legal
withoutthe need for any adjudication concerning Indonesia. correctness alone. Otherwise the Court would restrict its
The opinion also holds in favour of the right-of~ortu~al function to the detriment ofjustice and of the basic consti-
to maintain this Application as the administering Power tutional rule that it is "the principal judicial organ of the
over EastTimor, recognizedassuchby the UnitedNations. United Nations". That restrictive approachis illustrated by
The position and responsibilitiesof an administering Power the Judgment and it is cause for concern.
Summary of the Judgment of 30 June 1995