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Treaty of 1989 between Australia and Indonesia concerning the “Timor Gap”—existence of legal dispute between Portugal and Australia—objections to jurisdiction—effect of Court ruling on absent third parties—right to self-determination as right erga omnes —status of East Timor as non-self-governing territory: East Timor (Port. v. Austl.). 1995 ICJ Rep. 90

Published online by Cambridge University Press:  27 February 2017

Judith Hippler Bello  and
Peter H. F. Bekker
Peter H. F. Bekker
Affiliation:
Winthrop, Stimson, Putnam & Roberts
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Extract

International Court of Justice, June 30, 1995.

Portugal submitted an Application instituting proceedings against the Commonwealth of Australia before the International Court of Justice on February 22, 1991. Both Portugal and Australia had made declarations accepting the compulsory jurisdiction of the Court pursuant to Article 36, paragraph 2 of the ICJ Statute. Portugal sought a declaration from the Court that Portugal's status with respect to East Timor and the rights of the people of East Timor to self-determination, territorial integrity and unity, and permanent sovereignty over its wealth and natural resources were opposable to Australia. Portugal also sought a declaration that Australia had incurred international responsibility and had caused damage for which it owed reparation to both the people of East Timor and Portugal. Portugal alleged that Australia had incurred this responsibility mainly by negotiating and concluding—not with Portugal, but with Indonesia—a treaty on December 11, 1989, creating a “Zone of Cooperation” in an area of the undelimited continental shelf between East Timor and northern Australia known as the “Timor Gap.”

Type
International Decisions
Information
American Journal of International Law , Volume 90 , Issue 1 , January 1996 , pp. 94 - 98
Copyright
Copyright © American Society of International Law 1996 

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Footnotes

*

The author was a staff lawyer for the International Court of Justice during the years 1992-1994.

References

1 See infra note 18.

2 East Timor was so classed from the adoption of General Assembly Resolution 1542 (XV) (Dec. 15, 1960) onwards. 1995 ICJ Rep. 90, 95–96, para. 12.

3 Although the Court undeniably had jurisdiction by virtue of the acceptance by both Portugal and Australia of the Court’s compulsory jurisdiction pursuant to Article 36, paragraph 2 of the ICJ Statute, the dismissal was caused by the fact that, in the specific circumstances of this case, the Court could not exercise its jurisdiction to entertain Portugal’s Application.

4 See infra note 18.

5 Indonesia has not accepted the Court’s compulsory jurisdiction under Article 36, paragraph 2 of the ICJ Statute.

6 1995 ICJ Rep. at 99–100, para. 22.

7 Id. at 100, para. 23.

8 Id. at 101, para. 26, and 105, para. 34 (quoting, inter alia, 1954 ICJ Rep. 19, 32 (June 15)).

9 Id. at 101, para. 24 (quoting 1954 ICJ Rep. at 32). In Monetary Gold, a decision on the international responsibility of Albania was necessary, because Italy based its alleged entidement to receive a certain amount of gold in part on the possession of a right against Albania for the redress of an international wrong, which, according to Italy, Albania had committed against it.

10 Id. at 105, para. 34.

11 Id. (quoting its Judgment in another recent case involving Australia as respondent, Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240, 261, para. 55 (June 26)).

12 Id. (quoting 1992 ICJ Rep. at 261, para. 55).

13 Id. at 104.

14 Id. at 101, para. 25.

15 Id. at 102, para. 28, and 104–05, para. 34.

16 Id. at 102, para. 29 (emphasis added).

17 Id. at 103, para. 31.

18 Between 1975 and 1982, the question of East Timor was the subject of two resolutions of the UN Security Council, namely, SC Res. 384 (Dec. 22, 1975) and SC Res. 389 (Apr. 22, 1976); and of eight resolutions of the UN General Assembly, namely, GA Res. 3485 (XXX) (Dec. 12, 1975), GA Res. 31/53 (Dec. 1, 1976), GA Res. 32/34 (Nov. 28, 1977), GA Res. 33/39 (Dec. 13, 1978), GA Res. 34/40 (Nov. 21, 1979), GA Res. 35/27 (Nov. 11,1980), GA Res. 36/50 (Nov. 24,1981), and GA Res. 37/30 (Nov. 23,1982). Several of these resolutions refer to Portugal as the “administering Power” of East Timor.

19 1995 ICJ Rep. at 103–04, paras. 31–32.

20 Id. at 105, paras. 35–36. A summary of Australia’s objections appears in paragraph 20 of the Judgment, id. at 99.

21 It is interesting to study the very lengthy individual opinions that were attached to this remarkably concise Judgment, almost ten times as long as the Judgment itself, in the light of the remarks made by former ICJ judge and President Sir Robert Jennings in this Journal, expressing the hope “that separate opinions, and even dissents, be made as economical as may be.” Robert Y. Jennings, The International Court of Justice after Fifty Years, 89 AJIL 493, 498 (1995). It is equally interesting to place Judge Ranjeva’s reference, in the final paragraph of his separate opinion, 1995 ICJ Rep. at 133-34, to the Court’s role in laying down the framework for the development of international law against the background of Jennings’s comments in this Journal. Jennings, whose last judgment as a judge was East Timor, recommended that few emphasis be given to the law-developing function of the Court, in view of the considerable waiting list of cases, and that the Court instead focus on settling the particular case before it. See Jennings, supra, at 498.

22 In this respect, the Court often has to walk a fine line, as expressed by Judge Lachs in his declaration in Border and Transborder Armed Actions (Nicar. v. Hond.), Jurisdiction and Admissibility, 1988 ICJ Rep. 69, 108 (Dec. 20):

[S]olutions of matters of procedure are essential in the activities of any court, as they determine its role in the fate of a dispute brought before it. Such decisions may constitute the Court’s last word in such a dispute, or they may open the door to substantive consideration. In taking these decisions, this Court has to exercise the utmost care to discourage attempts to resort to it in any case lacking a proper jurisdictional foundation, but at the same time not to deny States their right to benefit from its decisions where such a foundation does exist.

23 1995 ICJ Rep. at 105, para. 35.

24 Id. at 102, para. 29 (with respect to this right’s erga omnes nature), and 103, para. 31 (with respect to the applicability of the right to the people of East Timor).

25 Id. at 105–06, para. 37.

26 For earlier references to the right to self-determination in the Court’s jurisprudence, see paragraph 29 of the Judgment, id. at 102. For the Nauru Judgment, see supra note 11.

27 The lack of the binding nature of precedents is due mainly to the fact that a decision of the ICJ affects the legal rights and interests solely of the parties to the particular case. See ICJ Statute Art. 59.

28 ICJ Rules of Court, Art. 79, reprinted in 73 AJIL 748, 761 (1979).

29 “Initial phase” proceedings relate to the stage in the proceedings that, with the agreement of the parties, deals exclusively with the questions of the Court’s jurisdiction and, in most cases, the admissibility of the application. The procedure of an “initial phase” limited to questions of jurisdiction and admissibility has developed from practice (it was first adopted in 1972 in the Fisheries Jurisdiction cases) and is not specifically provided for in the Rules of Court.

30 The Statute contains no provisions on preliminary objections similar to Article 79 of the Rules.

31 1995 ICJ Rep. at 98, para. 19.

32 Id. at 92, para. 4.

33 See Geneviève Guyomar, Commentaire du Reglement de la Cour Internationale de Justice 513 (1983) (citing relevant jurisprudence of the Court).

34 The last Judgment where the Court found that it was without jurisdiction to entertain an application was Aegean Sea Continental Shelf (Greece v. Turk.), Jurisdiction, 1978 ICJ Rep. 3 (Dec. 19).

35 Jurisdiction and Admissibility, 1995 ICJ Rep. 6.