YUGOSLAVIA VS.

US (LEGALITY OF USE OF FORCE) 1999 ICJ REP Latter: the issue of compatibility of particular acts with international
Decided by: ICJ law ONLY ARISES when jurisdiction has initially and already been
Backgrounder: established, and the Courts from there can decide on the merits whether
there was a violation of international law, including violations of humanitarian
FACTS: law.
-Apr. 29, 1999 – Yugoslavia filed application to ICJ institute proceedings against
US (as well as Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, PORTUGAL V. AUSTRALIA
Spain, UK) “for violation of obligation not to use force”.
-US allegedly bombed Yugoslavian territory with other NATO states.
-Basis of Yugoslavia to apply for jurisdiction in ICJ: Facts: Portugal instituted proceedings against Australia with respect to its
-Against Belgium, Canada, Netherlands, Portugal, Spain, UK: Art. 36
conduct and activities with respect to East Timor. Portugal administered East
par. 2 of ICJ Statute and Art. IX of Convention on Prevention and Punishment of
the Crime of Genocide (made by General Assembly of the UN) Timor as a non-self-governing territory under United Nations Chapter XI. On 27th
Against France, Germany, Italy, US: Art. IX of the same convention and
August 1975, due to internal disturbances caused by factions calling for self-
Art. 38 of the Rules of Court.
-Yugoslavia also applied for PROVISIONAL MEASURES so that respondent state determination, Portugal withdrew from East Timor. Soon after its departure on
shall refrain from any act of threat or use of force.
7th of December 1975, Indonesia invaded and occupied East Timor; and in 1976
ISSUE: Can the ICJ have jurisdiction? NO. East Timor's “People Assembly” formally sought to be integrated into Indonesia
as part of its territorial dominion. Later, on 20th of January 1978, Australia
RULING:
-For Yugoslavia vs. Spain and Yugoslavia vs. US: This Court lacks jurisdiction. We acknowledged de facto Indonesia's annexation of East Timor which was then
reject the indication for provisional measures.
followed by de jure recognition in the following year. A number of meetings
-we do not automatically have jurisdiction over legal disputes between states.
-Also, we cannot decide a dispute between States without the consent of the between Portugal and Australia took place to resolve the issue in relation to
disputing States.
undefined continental shelf between Indonesia and Australian known as the
-With regard to applying the Genocide Convention, both Yugoslavia and US may
have been parties to it, but the US made a reservation: 'Timor Gap'. The failure to resolve the matter through talk between the two
“before any dispute in which we are a party, the specific
countries resulted in a treaty between the two countries for exploration and
consent of the US is required in each case”. In this case, we did not give
our consent and we shall not do so. exploitation of natural resources around the Timor Sea seabed known as the
‘Treaty between Australia and the Republic of Indonesia on the zone of
-with this, we, the ICJ, cannot entertain Yugoslavia’s application and therefore
cannot also indicate any provisional measure whatsoever. cooperation in an area between the Indonesian province of East Timor and
Northern Australia.' According to Portugal, Australia had failed to observe the
-additional observation from the ICJ: there is a diff. between ACCEPTANCE OF A
STATE OF THE ICJ’S JURISDICTION vs. COMPATIBILITY OF PARTICULAR ACTS obligation to respect (a) the duties and powers of Portugal as administering
WITH INT’L. LAW:
power and the (b) right of the people of East Timor to self-determination.
Former: requires CONSENT.
Issue: WON the Court may take cognizance of the case.
 paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the
Application of the Portuguese Republic.
RULING: No, the Court may not take cognizance of the case for lack of
jurisdiction. On Australia’s argument that there is no dispute between itself and
Portugal, the Court found that, for the purpose of determining if a “real dispute”
existed, it is not relevant to consider whether the dispute should be between
Portugal and Indonesia rather than Portugal and Australia. The act of Australia
denying the complaints of fact and law made by Portugal is enough to say that
there exists a legal dispute. On Australia’s contention that Portugal’s application
would require the determination by the Court of Indonesia’s rights and
obligations, the Court found that assessing Australia’s behavior cannot be done
without looking into whether Indonesia could or could not have acquired the
power to enter into treaties on behalf of East Timor with respect to the
resources of its continental shelf. Looking into such cannot be done by the Court
without the consent of Indonesia. Portugal’s assertion that the right of people
to self-determination has an erga omnes character is irreproachable. However,
the Court considers the erga omnes character of a norm and the rule of consent
to jurisdiction as two different things. Regardless of the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct of
a State when its judgment would necessarily evaluate the lawfulness of the
conduct of a State that is not a party to a case. With regard to Portugal’s
argument that several UN resolutions, referring to Portugal as the
“administering power” imposes an obligation on States not to recognize
Indonesia’s authority on East Timor, the Court said that such obligation cannot
be inferred from the resolutions if they are used as the sole basis for the
purported obligation of states to treat exclusively with Portugal as regards East
Timor. The Court finds that it cannot in the present case exercise the jurisdiction
conferred upon it by the declarations made by the Parties under Article 36,