| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/
Determination of the Existence of a Dispute |
¤
East Timor (Portugal v. Australia)
Judgment, I.C.J. Reports 1995, p.
[pp. 99-100] 21. The Court will now consider Australia's objection
that there is in reality no dispute between itself and Portugal. Australia
contends that the case as presented by Portugal is artificially limited to
the question of the lawfulness of Australia's conduct, and that the true
respondent is Indonesia, not Australia. Australia maintains that it is being
sued in place of Indonesia. In this connection, it points out that Portugal and
Australia have accepted the compulsory jurisdiction of the Court under Article
36, paragraph 2, of its Statute, but that Indonesia has not.
In support of the objection, Australia contends that it recognizes, and has
always recognized, the right of the people of East Timor to self-determination,
the status of East Timor as a non-self-governing territory, and the fact that
Portugal has been named by the United Nations as the administering Power of East
Timor; that the arguments of Portugal, as well as its submissions, demonstrate
that Portugal does not challenge the capacity of Australia to conclude the 1989
Treaty and that it does not contest the validity of the Treaty; and that
consequently there is in reality no dispute between itself and Portugal.
Portugal, for its part, maintains that its Application defines the
real and only dispute submitted to the Court.
22. The Court recalls that, in the sense accepted in its jurisprudence and
that of its predecessor, a dispute is a disagreement on a point of law or fact,
a conflict of legal views or interests between parties (see Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p.
11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 27; and Applicability
of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988,
p. 27, para. 35). In order to establish the existence of a dispute, "It
must be shown that the claim of one party is positively opposed by the other"
(South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 328); and further, "Whether there exists an international dispute is
a matter for objective determination" (Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 74).
For the purpose of verifying the existence of a legal dispute in the present
case, it is not relevant whether the "real dispute" is between
Portugal and Indonesia rather than Portugal and Australia. Portugal has, rightly
or wrongly, formulated complaints of fact and law against Australia which the
latter has denied. By virtue of this denial, there is a legal dispute.
On the record before the Court, it is clear that the Parties are in
disagreement, both on the law and on the facts, on the question whether the
conduct of Australia in negotiating, concluding and initiating performance of
the 1989 Treaty was in breach of an obligation due by Australia to Portugal
under international law.
Indeed, Portugal's Application limits the proceedings to these questions.
There nonetheless exists a legal dispute between Portugal and Australia. This
objection of Australia must therefore be dismissed.
