CASES ON JURISDICTION

Portugal Vs Australia 1995

Facts: 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.

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.

Issue: 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.

Ruling: NO, 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 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.