Links

Site search
Document search
Contact

The Court

History
Members of the Court
Presidency
Chambers and Committees
Judges ad hoc
How the Court Works
Financial Assistance to Parties
Annual Reports

The Registry

Registrar
Organizational Chart of the Registry
Texts governing the Registry
Library of the Court
Employment
University traineeship program
Internships
Procurement

Cases

List of All Cases
Judgments, Advisory Opinions and Orders

Basic Documents

Charter of the United Nations
Statute of the Court
Rules of Court
Practice Directions
Other Texts

Jurisdiction

Contentious Jurisdiction
Advisory Jurisdiction

Press Room

Press releases
Calendar
Media Services
Multimedia
Frequently Asked Questions

Practical Information

Directions
Visits
Links
Frequently Asked Questions

Publications

Introduction

Permanent Court of International Justice

Series A: Collection of Judgments (1923-1930)
Series B: Collection of Advisory Opinions (1923-1930)
Series A/B: Collection of Judgments, Orders and Advisory Opinions (from 1931)
Series C: Acts and documents relating to Judgments and Advisory Opinions given by the Court / Pleadings, Oral Arguments and Documents
Series D: Acts and Documents concerning the organization of the Court
Series E: Annual Reports
Series F: General Indexes
Other documents


Français

East Timor (Portugal v. Australia)

Overview of the case

On 22 February 1991, Portugal filed an Application instituting proceedings against Australia concerning “certain activities of Australia with respect to East Timor”, in relation to the conclusion, on 11 December 1989, of a treaty between Australia and Indonesia which created a Zone of Co-operation in a maritime area between “the Indonesian Province of East Timor and Northern Australia”. According to the Application, Australia had by its conduct failed to observe the 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. In consequence, according to the Application, Australia had incurred international responsibility vis-à-vis the people of both East Timor and Portugal. As the basis for the jurisdiction of the Court, the Application referred to the declarations by which the two States had accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the admissibility of the Application.

The Court delivered its Judgment on 30 June 1995. It began by considering Australia’s objection that there was in reality no dispute between itself and Portugal. Australia contended that the case as presented by Portugal was artificially limited to the question of the lawfulness of Australia’s conduct, and that the true respondent was Indonesia, not Australia, observing that Portugal and itself had accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, but that Indonesia had not. The Court found in that respect that there was a legal dispute between the two States. The Court then considered Australia's principal objection, to the effect that Portugal’s Application would require the Court to determine the rights and obligations of Indonesia. Australia contended that the Court would not be able to act if, in order to do so, it were 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 Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity. In support of its argument, Australia referred to the Court’s Judgment in the case concerning Monetary Gold Removed from Rome in 1943.

After having carefully considered the arguments advanced by Portugal which sought to separate Australia’s behaviour from that of Indonesia, the Court concluded that Australia’s behaviour could not be assessed without first entering into the question why it was that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so ; the very subject-matter of the Court’s decision would necessarily 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 the power to enter into treaties on behalf of East Timor relating to the resources of the continental shelf. The Court took the view that it could not make such a determination in the absence of the consent of Indonesia.

The Court then rejected Portugal’s additional argument that the rights which Australia allegedly breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect them. In the Court’s view, Portugal’s assertion that the right of peoples to self-determination had an erga omnes character, was irreproachable, and the principle of self-determination of peoples had been recognized by the Charter of the United Nations and in the jurisprudence of the Court, and was one of the essential principles of contemporary international law. However, the Court considered that the erga omnes character of a norm and the rule of consent to jurisdiction were two different things, and that it could not in any event rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of another State which was not a party to the case.

The Court then considered another argument of Portugal which rested on the premise that the United Nations resolutions, and in particular those of the Security Council, could be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over East Timor and, where the latter is concerned, to deal only with Portugal. Portugal maintained that those resolutions would constitute “givens” on the content of which the Court would not have to decide de novo. The Court took note, in particular, of the fact that for the two Parties, the territory of East Timor remained a non-self-governing territory and its people had the right to self-determination, but considered that the resolutions could not be regarded as “givens” constituting a sufficient basis for determining the dispute between the Parties. It followed from all the foregoing considerations that the Court would necessarily first have to rule upon the lawfulness of Indonesia’s conduct. Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent, which would run directly counter to the principle according to which “the Court can only exercise jurisdiction over a State with its consent”. The Court accordingly found that it was not required to consider Australia’s other objections and that it could not rule on Portugal’s claims on the merits.


This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Written proceedings

Memorial of the Government of the Portuguese Republic
(French version only)

18 November 1991
Available in:
French

Reply of the Government of the Portuguese Republic
(French version only)

1 December 1992
Available in:
French

Oral proceedings

Verbatim record 1995/2

Public sitting held on Monday 30 January 1995, at 10.35 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/3

Public sitting held on Tuesday 31 January 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/4

Public sitting held on Wednesday 1 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/5

Public sitting held on Thursday 2 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/6

Public sitting held on Friday 3 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/7

Public sitting held on Monday 6 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/8

Public sitting held on Tuesday 7 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/9

Public sitting held on Wednesday 8 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/10

Public sitting held on Thursday 9 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/11

Public sitting held on Friday 10 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/12

Public sitting held on Monday 13 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/13

Public sitting held on Monday 13 February 1995, at 3 p.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/14

Public sitting held on Thursday 16 February 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 1995/15

Public sitting held on Thursday 16 February 1995, at 3 p.m., at the Peace Palace, President Bedjaoui presiding
Available in:
Original Language
Translation
(bilingual version) Translation

Orders

Order of 3 May 1991

Fixing of time-limits: Memorial and Counter-Memorial
Available in:
English French Bilingual

Order of 19 June 1992

Fixing of time-limits: Reply and Rejoinder
Available in:
English French Bilingual

Order of 19 May 1993

Extension of time-limit: Rejoinder
Available in:
English French Bilingual

Judgments

Summaries of Judgments and Orders

Summary 1995/2

Summary of the Judgment of 30 June 1995
Available in:
English French

Press releases

Press release 1991/6

22 February 1991
Portugal brings a case against Australia
Available in:
English French

Press release 1991/13

13 May 1991
East Timor (Portugal v. Australia) - Fixing of time-limits
Available in:
English French

Press release 1992/14

24 June 1992
East Timor (Portugal v. Australia) - Fixing of time-limits
Available in:
English French

Press release 1993/12

20 May 1993
East Timor (Portugal v. Australia) - Extension of time-limit
Available in:
English French

Press release 1994/22

31 October 1994
East Timor (Portugal v. Australia) - Hearings to open on 30 January 1995
Available in:
English French

Press release 1995/2

18 January 1995
East Timor (Portugal v. Australia) - Sitting of the Court of 30 January 1995
Available in:
English French

Press release 1995/7

17 February 1995
East Timor (Portugal v. Australia) - Progress and conclusion of public hearing
Available in:
English French

Press release 1995/14

9 June 1995
East Timor (Portugal v. Australia) - Judgment to be delivered on 30 June 1995
Available in:
English French

Press release 1995/16

27 June 1995
East Timor (Portugal v. Australia) - Sitting of the Court of 30 June 1995
Available in:
English French

Press release 1995/19

30 June 1995
East Timor (Portugal v. Australia) - Judgment of the Court
Available in:
English French