1995

ICJ

Case concerning East Timor Portugal v. Australi

According to the application Australia had failed to observe the obligation to respect the duties and powers of Portugal as the administrator power of East Timor and the right of East Timor to self-determination, by entering into a 1989 treaty with Indonesia, which had occupied by force and illegally claimed title to East Timor. The treaty delimited continental shelf. Australia objected that there was in reality no dispute between itself and Portugal, that the ‘real dispute’ and the true respondent is Indonesia. Portugal and Australia had accepted compulsory jurisdiction 36.2, but Indonesia not. Australia objected that Portugal’s application would require the Court to determine the rights and obligations of Indonesia. Court was required to rule on the lawfulness of Indonesia’s entry into and continuing presence in East Timor on the validity of the 1989 Treaty between Indonesia and Australia Resolution (22) A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties, Mavromatis 1924. 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, SWA 1962. Whether there exist a dispute is a matter for objective determination, Interpretation of peace treaties 1950

(22) For the purpose of verifying the existence of a legal dispute it is not relevant if the ‘real dispute’ is between Portugal and Indonesia rather than Portugal and Australia. Portugal has rightly or wrongly formulated complains of fact and law against Australia which has denied. By virtue of this denial, there is a legal dispute. It is clear that the parties are in disagreement both in questions of law and fact, on the question of the conduct of Australia in negotiating and concluding a Treaty was a breach of an obligation due by Australia to Portugal under international law. Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully conclude the 1989 Treaty. The very subject matter of the decision would be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired power to enter into treaties on behalf East Timor relating resources of its continental shelf. The court could not make such determination in the absence of Indonesia. Portugal’s assertion that the right of peoples to selfdetermination ... has an erga omnes character ... is irreproachable. The principle of selfdetermination ... is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are 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 which is not a party to the case (Monetary Gold Case). Where this is so, the Court cannot act, even if the right in question is a right erga omnes