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World Court Digest

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.