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.