## Facts

- East Timor was a non-self-governing territory administered by Portugal; Indonesia entered the territory in 1975 and later claimed to integrate it.
- The United Nations continued to treat East Timor as a non-self-governing territory and affirmed the East Timorese people’s right to self-determination; Portugal maintained it remained the administering Power.
- On 11 December 1989, Australia and Indonesia concluded the “Timor Gap Treaty,” creating a “Zone of Cooperation” for exploration and exploitation of petroleum resources in an area between northern Australia and East Timor.
- On 22 February 1991, Portugal instituted proceedings against Australia concerning “certain activities of Australia with respect to East Timor,” arguing that Australia, by negotiating, concluding, and implementing the Timor Gap Treaty and related measures, failed to respect (i) the right of the people of East Timor to self-determination and related rights over natural resources, and (ii) Portugal’s powers and duties as administering Power.
- Portugal invoked the Court’s jurisdiction under Article 36(2) of the ICJ Statute, relying on the parties’ declarations accepting compulsory jurisdiction.
- In its Counter-Memorial, Australia raised objections framed in terms of jurisdiction and admissibility, including that (a) there was no real dispute between Portugal and Australia because the real target was Indonesia, and (b) the Court could not decide the case without determining Indonesia’s rights and obligations, even though Indonesia was not a party and had not consented to the Court’s jurisdiction.
- The parties agreed that Australia’s objections were tied to the merits and should be heard and decided within the merits phase.

## Issues

1. Whether there existed a legal dispute between Portugal and Australia concerning Australia’s conduct related to East Timor and the Timor Gap Treaty.
2. Whether the Court could decide Portugal’s claims without first determining the lawfulness of Indonesia’s position in East Timor and Indonesia’s capacity to conclude the Timor Gap Treaty on behalf of East Timor (the Monetary Gold problem).
3. Whether the right of self-determination, as an obligation owed to the international community as a whole, allowed the Court to proceed despite Indonesia’s absence and lack of consent.
4. Whether UN General Assembly and Security Council resolutions could be treated as “givens” so that the Court would not need to decide Indonesia’s legal position in order to rule on Australia’s responsibility.

## Decision

- The Court held that a legal dispute did exist between Portugal and Australia; Portugal’s Application challenged Australia’s conduct as unlawful and Australia contested that characterization.
- The Court nevertheless held it could not exercise jurisdiction in the circumstances because deciding Australia’s responsibility for concluding and implementing the Timor Gap Treaty would require the Court to rule, as a necessary step, on Indonesia’s rights and obligations and on whether Indonesia had the authority to enter into treaties relating to East Timor’s resources.
- The Court concluded that Indonesia’s legal interests would constitute the very subject-matter of the decision sought, bringing the case within the Monetary Gold principle; Indonesia was an absent State and had not consented to jurisdiction.
- The Court accepted that the right of peoples to self-determination is a right owed to the international community as a whole, but held that this did not remove the requirement of State consent to the Court’s jurisdiction or permit adjudication of Indonesia’s rights in its absence.
- The Court declined to rule on the merits and therefore did not decide the legality of Indonesia’s presence in East Timor, the validity of the Timor Gap Treaty, or whether Australia breached substantive obligations related to self-determination and non-recognition.

## Legal Principles

- The ICJ will not decide a case when the rights and obligations of an absent third State would form the very subject-matter of the decision and that State has not consented to the Court’s jurisdiction (Monetary Gold principle).
- A dispute can exist between two States even where a third State’s conduct is central to the background, provided the applicant alleges the respondent’s conduct is internationally wrongful and the respondent contests that claim.
- The character of a norm as owed to the international community as a whole (including the right of self-determination) does not override the rule that jurisdiction depends on State consent, nor does it permit the Court to determine an absent State’s rights without consent.
- The Court examines whether the respondent’s conduct is legally separable from the absent State’s conduct; if assessing the respondent’s responsibility requires a prior ruling on the absent State’s legal position, the case cannot proceed.
- UN resolutions and general statements about a territory’s status cannot be used to avoid deciding questions that, in the case as pleaded, would still require determinations about an absent State’s legal capacity and responsibilities.

## Conclusion

The ICJ found that Portugal and Australia were in a genuine legal dispute over Australia’s conduct regarding the Timor Gap Treaty, but dismissed the case because resolving Portugal’s claims would necessarily require determining Indonesia’s rights and authority in relation to East Timor, which the Court could not do without Indonesia’s consent, even given the acknowledged right of the East Timorese people to self-determination.


East Timor (Port. v. Austl.), Judgment, 1995 I.C.J. Rep. 90 (June 30)