PUBLIC INTERNATIONAL LAW | B2015

CASE DIGESTS

PORTUGAL v. AUSTRALIA
June 30, 1995
International Court of Justice
Raeses, Roberto Miguel O.

SUMMARY: Portugal instituted proceedings against

Australia concerning "certain activities of Australia with
respect to East Timor", on account of the latters alleged
failure 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. Portugal
instituted proceedings against Australia by virtue of a
treaty between Australia and Indonesia regarding the
exploration and exploitation of natural resources around
the Timor Sea seabed. While the Court recognized that
there is a legal dispute between the two countries, it
ultimately dismissed the case, considering that 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. Moreover, such a
determination could not be made without the consent of
Indonesia, which had refused to accept the jurisdiction of
the Court.
DOCTRINE: Whatever the nature of the obligation
invoked, the Court could not rule on the lawfulness of the
conduct of a state when its judgment would imply and
evaluation of the lawfulness of the conduct of another
state which is not a party to the case.

[Historical Background (not found in the case)]

Portugal administered East Timor as a non-self-governing
territory under United Nations Chapter XI. On 27th August
1975, due to internal disturbances caused by factions calling
for self-determination, Portugal withdrew from East Timor.
Soon after its departure on 7th of December 1975, Indonesia
invaded and occupied East Timor; and in 1976 East Timor's
People Assembly formally sought to be integrated into
Indonesia as part of its territorial dominion. Later, on 20th of
January 1978, Australia acknowledged de facto Indonesia's
annexation of East Timor which was then followed by de jure
recognition in the following year.
A number of meetings between Portugal and Australia took
place to resolve the issue in relation to undefined
continental shelf between Indonesia and Australian known
as the 'Timor Gap'. The failure to resolve the matter through
talk between the two countries resulted in a treaty between
the two countries for exploration and exploitation of natural
resources around the Timor Sea seabed known as the
Treaty between Australia and the Republic of Indonesia on
the zone of cooperation in an area between the Indonesian
province of East Timor and Northern Australia.' [End of
Historical Background]
According to Portugal, Australia had failed to observe the
obligation to respect (a) the duties and powers of Portugal
as administering power and the (b) right of the people of
East Timor to self-determination.
ISSUES: WON the Court may take cognizance of the case.

The Court can only exercise jurisdiction over a State with

its consent. [Montgomery Gold Removed from Rome in
1943]

RULING: No, the Court may not take cognizance of the

case for lack of jurisdiction.

FACTS: Portugal instituted proceedings against Australia

with respect to its conduct and activities with respect to
East Timor.

RATIO:
On Australias argument that there is no dispute
between itself and Portugal, the Court found that, for
the purpose of determining if a real dispute existed, it

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CASE DIGESTS

is not relevant to consider whether the dispute should be

between Portugal and Indonesia rather than Portugal and
Australia. The act of Australia denying the complaints of
fact and law made by Portugal is enough to say that
there exists a legal dispute.

administering power, East Timors status as a non-selfgoverning territory and the right of its people to selfdetermination, which the Court cannot lawfully do without
Indonesias consent. To do so would violate the rule laid
down in Montgomery Gold1.

On
Australias
contention
that
Portugals
application would require the determination by
the Court of Indonesias rights and obligations, the
Court found that assessing Australias behavior cannot
be done without looking into whether Indonesia could or
could not have acquired the power to enter into treaties
on behalf of East Timor with respect to the resources of
its continental shelf. Looking into such cannot be done
by the Court without the consent of Indonesia.

Portugals assertion that the right of people to

self-determination has an erga omnes character is
irreproachable. However, the Court considers the erga
omnes character of a norm and the rule of consent to
jurisdiction as two different things. Regardless of the
nature of the obligations invoked, the Court could not
rule on the lawfulness of the conduct of a State when its
judgment would necessarily evaluate the lawfulness of
the conduct of a State that is not a party to a case.

With regard to Portugals argument that several UN

resolutions,
referring
to
Portugal
as
the
administering power imposes an obligation on
States not to recognize Indonesias authority on
East Timor, the Court said that such obligation cannot
be inferred from the resolutions if they are used as the
sole basis for the purported obligation of states to treat
exclusively with Portugal as regards East Timor.

DISPOSITIVE: [Taken from the original case] The Court

finds that it cannot in the present case exercise the
jurisdiction conferred upon it by the declarations made by
the Parties under Article 36, paragraph 2, of its Statute to
adjudicate upon the dispute referred to it by the Application
of the Portuguese Republic.
SEPARATE OPINION:
Judge Oda: Portugals application should be dismissed, but
it such dismissal should not have been based on lack of
consent. It should have been based on Portugals lack of
locus standi.
Portugal gave an incorrect definition of the dispute and
overlooked the difference between the opposability to
any State of its rights and duties as administering Power
or of the rights of the people of East Timor and the more
basic question of whether Portugal is the State entitled
to assert these rights and duties.
The central question should have been which country
was entitled to the continental shelf in the Timor Gap.
Lack of evidence on the view of the people of East Timor,
on whose behalf the application has been filed, is one of
the main reasons why the Court cannot decide the case.

Following the findings of the Court mentioned above, it

would then be necessary for it to rule upon the lawfulness of
Indonesias conduct for deciding on Portugals contention
that Australia violated its obligation to respect Portugal as

DISSENTING OPINION:
Judge Weeramantry: The decision to dismiss the
objection that no real dispute existed between Australia
and Portugal, as well as the Courts stress on the
importance of self-determination is correct.
o However, it is incorrect to say that the Court lacked
jurisdiction. The rights of self-determination and
1

The well-established principle of International Law embodied in

the Courts statute, namely, that the Court can only exercise
jurisdiction over a State with its consent.

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permanenet sovereignty over natural resources are

rights erga omnes belonging to the people of East
Timor, and therefore generate a corresponding duty
on the part of all states. The Court should have
looked into whether Australias actions allow for a
case to be made against it, without any adjudication
regarding Indonesia.
The administering Power has the right to maintain an
application considering that such is recognized by
the UN. Such position and responsibilities are not lost
by virtue of mere loss of physical control.

Judge Skubiszewski: The Court can render a decision

on the merits. Even if it finds itself without jurisdiction to
adjudicate on any issue regarding the Timor Gap, the
Court could deal with Portugals submission regarding
the status of East Timor, the applicability of the principle
of self-determination and Portugals position as
administering Power.
o The Court also misapplied the rule laid down in
Montgomery Gold. In fact, the rule there does not
exclude jurisdiction in this case.
o The Court can actually adjudicate o the lawfulness of
some
of Australias
unilateral acts without
adjudicating on any issue directly related to
Indonesia.
o Portugal has the capacity to act on behalf of East
Timor.