Case Digest: Portugal v. Australia, ICJ 1995

Public International Law | Jurisdiction of the ICJ: Contentious jurisdiction

Facts:

  • In 1991, Portugal initiated proceedings against Australia a concerning “certain activities of Australia with respect to East Timor,” alleging violations of obligations towards Portugal as the administering power and the right of self-determination for East Timor's people.
  • The jurisdiction was based on declarations by both states accepting the ICJ's compulsory jurisdiction under Article 36, paragraph 2, of the Statute.
  • Australia raised objections on the jurisdiction and admissibility of the Application in its Counter-Memorial.
  • The Court discussed the historical involvement of Portugal, Indonesia, and various resolutions related to East Timor.
  • Australia argued that Portugal's case was against Indonesia, not Australia, as Indonesia hadn't accepted the ICJ's jurisdiction.
  • The Court found a legal dispute between Portugal and Australia, regardless of the "real dispute" between Portugal and Indonesia.
  • Australia objected, stating that the case required the Court to determine Indonesia's rights and obligations, which exceeded the Court's jurisdiction.
  • Portugal argued its case was solely about Australia's conduct in negotiations with Indonesia, separate from Indonesia's lawfulness.
  • The Court found that assessing Australia's behavior required evaluating Indonesia's rights and thus couldn't be decided without Indonesia's consent.
  • Portugal's assertion about erga omnes character of self-determination rights didn't alter the requirement of consent to jurisdiction.
  • UN resolutions referring to Portugal as the administering power didn't create an obligation on third states to exclusively deal with Portugal regarding East Timor's continental shelf.
  • The Court concluded that ruling on Portugal's claims against Australia would necessitate judging Indonesia's conduct without its consent, contravening the principle of consent to jurisdiction.
  • As a result, the Court couldn't rule on Portugal's claims against Australia on their merits due to the absence of Indonesia's consent, even though East Timor remained a non-self-governing territory with the right to self-determination.

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