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084- East Timor Case (Portugal vs Australia)

On February 22nd, 1991, Portugal filed with the International Court of Justice (ICJ) an application instituting proceedings against Australia concerning “certain activities of Australia with respect to East Timor”. It contended that Australia had disregarded its 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.

Australia raised objections to the jurisdiction of the Court and the admissibility of the application, including the non-existence of a dispute between Australia and Portugal. Indeed, according to the defendant State, the question actually raised by Portugal concerned the rights of Indonesia, a country which had not accepted the jurisdiction of the Court and which had not intervened in that proceeding. In its response, Portugal stated, on the contrary, that there was a real difference between the behaviour of Australia and Indonesia; alternatively, it asserted that the obligations allegedly breached were obligations erga omnes, i.e. obligations applicable to all, including Australia.

The Court ruled on all these points in its judgment of June 30th, 1995 and decided that there was indeed a legal dispute between the parties. It then examined the interconnection of the rights of the various States involved, namely Portugal, Australia but also Indonesia and concluded that:

  1. It was not possible to rule on the dispute submitted by Portugal without addressing the incidental issues relating to the lawfulness of Indonesia’s entry and continued presence in East Timor, the validity of the 1989 treaty between Australia and Indonesia, or Indonesia’s rights and obligations under that treaty. As Indonesia had not agreed to intervene in these proceedings, the ICJ could not judge whether or not Australia’s conduct in relation to East Timor was lawful;
  2. The right of peoples to self-determination was indeed a cardinal principle of international law and applied erga omnes. However, what was being debated in the present case was not that right but that of consent to jurisdiction, which had not been given by Indonesia.

Therefore, following its settled case-law, the Court declined to continue examining the other points of law raised by the parties.

Judgment of 30-06-1995.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.