.....The two following opinions--the majority of the Court, and the concurring opinion of Judge Oda-- contrast the right of self-determination (UN-sponsored) and the right of sovereign control (claimed by both Portugal and Indonesia) over East Timor. Although Portugal lost actual control of East Timor in the aftermath of the Indonesian conquest, it hoped that the International Court of Justice (ICJ) might restore Portugal's claim to sovereignty—under the guise of various UN resolutions deploring Indonesia's denial of the right to self-determination.
.....An essential issue was whether Portugal retained the power to bring this case on behalf of the people of East Timor. Portugal's decision to sue Australia placed the latter nation, and the Court, in an awkward position. Neither Australia nor the UN approved of the earlier Indonesian takeover. Australia needed to more clearly resolve its rights in the continental shelf area shared by East Tmor and Australia via its post-takeover treaty with Indonesia.
.....The UN's judicial arm, the ICJ, is supposed to uphold International Law, which includes the right of self-determination of peoples to choose their own form of government. Yet the de facto control of East Timor by Indonesia, the resulting denial of self-determination to its independence-minded inhabitants, and the absence of Indonesia from the court proceedings, and the validity of Indonesia's military conquest all militated against the Court's being able to effectively resolve this controversy.
.....Italics within the following edited opinion have been added by the textbook's author. The numbered paragraphs are those of the ICJ--the typical style employed by international courts.]
[Court's Opinion.]......................................................
11. The Territory of East Timor
corresponds to the eastern part of the island of Timor.... Its
capital is Dili, situated on its north coast. The south coast
of East Timor lies opposite the north coast of Australia, the
distance between them being approximately 430 kilometres. In
the sixteenth century, East Timor became a colony of Portugal;
Portugal remained there until 1975. The western part of the island
came under Dutch rule and later became part of independent Indonesia.
12. In resolution 1542(XV) of 15 December 1960 the United Nations General Assembly recalled "differences of views ... concerning the status of certain territories under the administrations of Portugal and Spain and described by these two States as 'overseas provinces' of the metropolitan State concerned"; and it also stated that it considered that the territories under the administration of Portugal, which were listed therein (including "Timor and dependencies") were non-self-governing territories within the meaning of Chapter XI of the Charter. Portugal accepted this position in 1974.
13. Following internal disturbances in East Timor, on 27 August 1975 the Portuguese civil and military authorities withdrew from the mainland of East Timor to the [nearby] island of Atauro. On 7 December 1975 the armed forces of Indonesia intervened in East Timor. On 8 December 1975 the Portuguese authorities departed from the island of Atauro, and thus left East Timor altogether. Since their departure, Indonesia has occupied the Territory, and the Parties acknowledge that the Territory has remained under the effective control of that State. Asserting that on 31 May 1976 the people of East Timor had requested Indonesia "to accept East Timor as an integral part of the Republic of Indonesia", on 17 July 1976 Indonesia enacted a law incorporating the Territory as part of its national territory.
14. Following the intervention of the armed forces of Indonesia in the Territory and the withdrawal of the Portuguese authorities, the question of East Timor became the subject of two resolutions of the Security Council and of eight resolutions of the General Assembly [from 1975 through 1982]....
15. Security Council resolution
384 (1975) of 22 December 1975 called upon "all States to
respect the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination";
called upon "the Government of Indonesia to withdraw without
delay all its forces from the Territory"; and further called
upon "the Government of Portugal as administering Power
to co-operate fully with the United Nations so as to enable the
people of East Timor to exercise freely their right to self-determination".
Security Council resolution 389 (1976) of 22 April 1976 adopted
the same terms with regard to the right of the people of East
Timor to self-determination; called upon "the Government
of Indonesia to withdraw without further delay all its forces
from the Territory"; and further called upon "all States
and other parties concerned to co-operate fully with the United
Nations to achieve a peaceful solution to the existing situation
...".
.....General Assembly resolution
3485(XXX) of 12 December 1975 referred to Portugal "as the
administering Power"; called upon it "to continue to
make every effort to find a solution by peaceful means";
and "strongly deplore[d] the military intervention of the
armed forces of Indonesia in Portuguese Timor". In resolution
31/53 of 1 December 1976, and again in resolution 32/34 of 28
November 1977, the General Assembly rejected "the claim
that East Timor has been incorporated into Indonesia, inasmuch
as the people of the Territory have not been able to exercise
freely their right to self-determination and independence".
...........................................................................................
16. No further resolutions on
the question of East Timor have been passed by the Security Council
since 1976 or by the General Assembly since 1982. However, the
Assembly has maintained the item on its agenda since 1982, while
deciding at each session, on the recommendation of its General
Committee, to defer consideration of it until the following session.
East Timor also continues to be included in the list of non-self-governing
territories within the meaning of Chapter XI of the Charter;
and the Special Committee on the Situation with Regard to the
Implementation of the Declaration on the Granting of Independence
to Colonial Countries and Peoples remains seized of the question
of East Timor. The Secretary-General of the United Nations is
also engaged in a continuing effort, in consultation with all
parties directly concerned, to achieve a comprehensive settlement
of the problem.
17. The incorporation of East Timor as part of Indonesia was recognized by Australia de facto on 20 January 1978. On that date the Australian Minister for Foreign Affairs stated: "The Government has made clear publicly its opposition to the Indonesian intervention and has made this known to the Indonesian Government." He added: "[Indonesia's] control is effective and covers all major administrative centres of the territory." And further:
"This is a reality with which we must come to terms. Accordingly, the Government has
..decided that although it remains critical of the means by which integration was brought
..about it would be unrealistic to continue to refuse to recognize de facto that East Timor
..is part of Indonesia."
.....On 23 February 1978 the
[Australian] Minister said: "we recognize the fact that
East Timor is part of Indonesia, but not the means by which this
was brought about".
.....On 15 December 1978 the Australian
Minister for Foreign Affairs declared that [treaty] negotiations
which were about to begin between Australia and Indonesia for
the delimitation of the continental shelf between Australia and
East Timor, "when they start, will signify de jure recognition
by Australia of the Indonesian incorporation of East Timor";
he added: "The acceptance of this situation does not alter
the opposition which the Government has consistently expressed
regarding the manner of incorporation." The negotiations
in question began in February 1979.
18. Prior to this, Australia
and Indonesia had, in 1971-1972, established a delimitation of
the continental shelf between their respective coasts; the delimitation
so effected stopped short on either side of the continental shelf
between the south coast of East Timor and the north coast of
Australia. This undelimited part of the continental shelf was
called the "Timor Gap". The delimitation negotiations
which began in February 1979 between Australia and Indonesia
related to the Timor Gap; they did not come to fruition. Australia
and Indonesia then turned to the possibility of establishing
a provisional arrangement for the joint exploration and exploitation
of the resources of an area of the continental shelf. A Treaty
to this effect was eventually concluded between them on 11 December
1989, whereby a "Zone of Cooperation" was created "in
an area between the Indonesian Province of East Timor and Northern
Australia". Australia enacted legislation in 1990 with a
view to implementing the Treaty; this law came into force in
1991.
...........................................................................................
19. In
these proceedings Portugal maintains that Australia, in negotiating
and concluding the 1989 Treaty, in initiating performance of
the Treaty, in taking internal legislative measures for its application,
and in continuing to negotiate with Indonesia, has acted unlawfully,
in that it has infringed the rights of the people of East Timor
to self-determination and to permanent sovereignty over its natural
resources, infringed the rights of Portugal as the administering
Power, and contravened Security Council resolutions 384 and 389.
Australia raised objections to the jurisdiction of the Court
and to the admissibility of the Application [including Portugal's
not making Indonesia a party to the ICJ lawsuit]. It [Portugal]
took the position, however, that these objections were inextricably
linked to the merits and should therefore be determined within
the framework of the merits. The Court heard the Parties both
on the objections and on the merits. While Australia concentrated
its main arguments and submissions on the objections, it also
submitted that Portugal's case on the merits should be dismissed,
maintaining, in particular, that its actions did not in any way
disregard the rights of Portugal.
...........................................................................................
20. According to one of the
objections put forward by Australia, there exists in reality
no dispute between itself and Portugal. In another objection
[to the jurisdiction of the Court], it argued that Portugal's
Application would require the Court to rule on the rights and
obligations of a State which is not a party to the proceedings,
namely Indonesia. According to further objections of Australia,
Portugal lacks standing to bring the case, the argument being
that it does not have a sufficient interest of its own to institute
the proceedings, notwithstanding the references to it in some
of the resolutions of the Security Council and the General Assembly
as the administering Power of East Timor, and that it cannot,
furthermore, claim any right to represent the people of East
Timor; its claims are remote from reality, and the judgment the
Court is asked to give would be without useful effect; and finally,
its claims concern matters which are essentially not legal in
nature which should be resolved by negotiation within the framework
of ongoing procedures before the political organs of the United
Nations. Portugal requested the Court to dismiss all these objections.
21. The Court will now
consider Australia's objection that there is in reality no dispute
between itself and Portugal. Australia contends that the case
as presented by Portugal is artificially limited to the question
of the lawfulness of Australia's conduct, and that the true respondent
is Indonesia, not Australia. Australia maintains that it is being
sued in place of Indonesia. In this connection, it points out
that Portugal and Australia have accepted the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of its Statute, but
that Indonesia has not.
.....In support of the objection,
Australia contends that it recognizes, and has always recognized,
the right of the people of East Timor to self-determination,
the status of East Timor as a non-self-governing territory, and
the fact that Portugal has been named by the United Nations as
the administering Power of East Timor; that the arguments of
Portugal, as well as its submissions, demonstrate that Portugal
does not challenge the capacity of Australia to conclude the
1989 Treaty and that it does not contest the validity of the
Treaty; and that consequently there is in reality no dispute
between itself and Portugal. Portugal, for its part, maintains
that its Application defines the real and only dispute submitted
to the Court.
...........................................................................................
23.......................................................................................
.....In the Court's view, Portugal's
assertion that the right of peoples to self-determination, as
it evolved from the Charter and from United Nations practice
... is irreproachable. The principle of self-determination of
peoples has been recognized by the United Nations Charter and
in the jurisprudence of the Court...; it is one of the essential
principles of contemporary international law. ... Whatever the
nature of the obligations invoked, the Court could not rule on
the lawfulness of the conduct of a State when its judgment would
imply an evaluation of the lawfulness of the conduct of another
State which is not a party to the case. Where this is so, the
Court cannot act....
30. Portugal ... argues
that the principal matters on which its claims are based, namely
the status of East Timor as a non-self-governing territory and
its own capacity as the administering Power of the Territory,
have already been decided by the General Assembly and the Security
Council, acting within their proper spheres of competence; that
in order to decide on Portugal's claims, the Court might well
need to interpret those decisions but would not have to decide
de novo on their content and must accordingly take them as "givens";
and that consequently the Court is not required in this case
to pronounce on the question of the use of force by Indonesia
in East Timor or upon the lawfulness of its presence in the Territory.
.....Australia objects that the
United Nations resolutions regarding East Timor do not say what
Portugal claims they say; that the last resolution of the Security
Council on East Timor goes back to 1976 and the last resolution
of the General Assembly to 1982, and that Portugal takes no account
of the passage of time and the developments that have taken place
since then; and that the Security Council resolutions are not
resolutions which are binding under Chapter VII of the Charter
or otherwise and, moreover, that they are not framed in mandatory
terms.
31. The Court notes that
the argument of Portugal under consideration rests on the premise
that the United Nations resolutions, and in particular those
of the Security Council, can be read as imposing an obligation
on States not to recognize any authority on the part of Indonesia
over the Territory and, where the latter is concerned, to deal
only with Portugal. The Court is not persuaded, however, that
the relevant resolutions went so far.
.....For the two Parties, the Territory
of East Timor remains a non-self-governing territory and its
people has the right to self-determination. Moreover, the General
Assembly, which reserves to itself the right to determine the
territories which have to be regarded as non-self-governing for
the purposes of the application of Chapter XI of the Charter,
has treated East Timor as such a territory. The competent subsidiary
organs of the General Assembly have continued to treat East Timor
as such to this day. Furthermore, the Security Council, in its
resolutions 384 (1975) and 389 (1976) has expressly called for
respect for "the territorial integrity of East Timor as
well as the inalienable right of its people to self-determination
in accordance with General Assembly resolution 1514(XV)".
.....Nor is it at issue between
the Parties that the General Assembly has expressly referred
to Portugal as the "administering Power" of East Timor
in a number of the resolutions it adopted on the subject of East
Timor between 1975 and 1982, and that the Security Council has
done so in its resolution 384 (1975). The Parties do not agree,
however, on the legal implications that flow from the reference
to Portugal as the administering Power in those texts.
...........................................................................................
35. The Court concludes that
it cannot, in this case, exercise the jurisdiction it has ...
because, in order to decide the claims of Portugal, it would
have to rule, as a prerequisite, on the lawfulness of Indonesia's
conduct in the absence of that State's consent. This conclusion
applies to all the claims of Portugal, for all of them raise
a common question: whether the power to make treaties concerning
the continental shelf resources of East Timor belongs to Portugal
or Indonesia, and, therefore, whether Indonesia's entry into
and continued presence in the Territory are lawful. In these
circumstances, the Court does not deem it necessary to examine
the other arguments derived by Australia from the non-participation
of Indonesia in the case, namely the Court's lack of jurisdiction
to decide on the validity of the 1989 Treaty and the effects
on Indonesia's rights under that treaty which would result from
a judgment in favour of Portugal.
...........................................................................................
.........................................................[Concurring Opinion of Judge Oda]
...........................................................................................
9. ... There is no doubt that,
prior to 1974, Portugal had sovereignty over East Timor as one
of its own overseas provinces and that Portugal, as the coastal
State, would have had a right to the continental shelf in the
seabed areas off the coast of East Timor in the Timor Sea.
10. On the other hand, the United Nations Charter contains a "declaration regarding non-self-governing territories" (Chap. XI) under which Member States which have or assume responsibilities for the administration of the colonial territories, accept as a sacred trust the obligation to promote the well-being of the inhabitants of these territories and, to this end, to transmit regularly to the Secretary-General statistical and other information of a technical nature relating to the territories. Portugal never supplied regular information on its own colonies scattered throughout the world and was not seen to have acknowledged that those colonies had the status of non-self-governing territories under the United Nations system.
.....In 1960 the United Nations General Assembly, after having made the "Declaration on Decolonization" proclaiming the right of all peoples to self-determination (resolution 1514(XV)), adopted a resolution addressed in particular to Portugal in which it considered East Timor to be a non-self-governing territory within the meaning of Chapter XI of the Charter and requested Portugal to transmit to the Secretary-General information on East Timor, among other non-self-governing territories under Portuguese control (resolution 1542(XV)).
11.
Between 1961 and 1973 the General Assembly repeatedly
appealed to Portugal to comply with the decolonization policy
of the United Nations and continued to condemn Portugal's colonial
policy and its persistent refusal to carry out that United Nations
policy. In 1963 the Security Council for its part deprecated
the attitudes of the Portuguese Government and its repeated violations
of the principles of the Charter, urgently calling upon Portugal
to implement the decolonization policy (resolutions 180 (1963)
and 183 (1963)), and in 1965 once again passed a resolution deploring
Portugal's failure to comply with the previous General Assembly
and Security Council resolutions (resolution 218 (1965)). In
1972, the Security Council repeated its condemnation of the persistent
refusal of Portugal to implement the earlier resolutions (resolutions
312 (1972) and 322 (1972)).
.....Portugal did not take any steps
to assume the duties and responsibilities of a governing authority
in relation to those territories which should have been treated
as non-self-governing territories in accordance with the United
Nations concept, and continued to regard them merely as its overseas
provinces.
...........................................................................................
12. ... [I]n April 1974, the
Government in Portugal was replaced by a new regime. The "Law
of 27 July 1974", promulgated by the Council of State, revised
the old Portuguese Constitution and acknowledged the right to
self-determination—including independence—of the territories
under Portuguese administration. The new Government of Portugal
convened conferences on decolonization in May 1975 in Dili and
in June 1975 in Macao, to which it invited the representatives
of several East Timorese political groups. The "Law of 17
July 1975" relating to the decolonization of East Timor,
which resulted from those conferences, was intended to put an
end to the sovereignty of Portugal over East Timor in October
1978.
.....On the other hand Indonesia,
which seems not to have sought previously to annex East Timor
to its own territory and had maintained friendly relations with
Portugal, appears to have begun considering the annexation of
East Timor in the 1970s. In July 1975, the President of Indonesia
asserted that East Timor would not be competent to attain its
independence. The political group UDT, which supported the approach
of the Indonesian Government, organized a coup d'etat on 11 August
1975. The local government in East Timor did not receive any
effective assistance from Portugal itself; its members left in
August 1975 for the island of Atauro north of Timor and, in December
1975, moved away from that island and thus left the area. Portugal
did not accept the request of the FRETILIN group [one of the
rival political parties] to return to East Timor and Indonesia
began to prepare for a large-scale military invasion of the Territory.
These developments marked the end of Portuguese rule in East
Timor.
13. On 28 November 1975
FRETILIN declared the full independence of the Territory and
the establishment of the Democratic Republic of East Timor. On
the other hand, some other political parties, such as UDT and
APODETI, which considered that it would be difficult for East
Timor to maintain its independence, were willing to be annexed
by Indonesia and on 30 November 1975 the representatives of those
groups made a declaration of the separation of the Territory
from Portugal and its incorporation into Indonesia.
.....In early December 1975 Indonesia
sent an army of 10,000 men to Dili. On 17 December 1975, the
pro-Indonesian parties declared the establishment of a provisional
government of East Timor in Dili. Responding to an alleged appeal
from the people of East Timor, Indonesia passed a law on 15 July
1976 providing for annexation, which the President of Indonesia
signed on 17 July 1976. East Timor was thus given the status
of the twenty-seventh province of Indonesia. The Portuguese authorities,
which had already left the island, have never returned to East
Timor since that time.
.......................................................................................
14. As from the year 1974, which
was marked by the change in Portuguese colonial policy under
the new regime, the General Assembly continued to adopt successive
resolutions on the implementation of the Declaration on Decolonization.
In its 1974 resolution, the General Assembly welcomed the acceptance
by the new Government of Portugal of the principle of self-determination
and independence and its unqualified applicability to all the
peoples under Portuguese colonial domination, calling upon Portugal
to pursue the necessary steps to ensure the full implementation
of the "Declaration on Decolonization" (resolution
3294(XXIX)).
.....In 1975 the General Assembly,
for the first time, adopted a resolution relating to East Timor
in which it called upon Portugal as the administering Power to
continue to make every effort to find a solution by peaceful
means through talks between the Government of Portugal and the
political parties representing the people of Portuguese Timor;
strongly deplored the military intervention of the armed forces
of Indonesia, and called upon Indonesia to desist from further
violation of the territorial integrity of Portuguese Timor and
to withdraw without delay its armed forces from the Territory
in order to enable the people of the Territory freely to exercise
their right to self-determination and independence (resolution
3485(XXX)).
.....Further to that General Assembly
resolution, the Security Council, on 22 December 1975, deplored
the intervention of the armed forces of Indonesia in East Timor,
regretting that the Government of Portugal was not discharging
fully its responsibilities as administering Power in the Territory
under Chapter XI of the Charter, called upon Indonesia to withdraw
all its forces from the Territory without delay, and called upon
Portugal as administering Power to co-operate fully with the
United Nations so as to enable the people of East Timor to exercise
freely their right to self-determination (resolution 384 (1975)).
Several months later, on 22 April 1976, the Security Council
once again passed a resolution in which it did not refer to the
responsibility of Portugal as the administering Power of East
Timor but was only concerned with the military intervention of
Indonesia in that Territory (resolution 389 (1976)).
15. In a resolution of
1976, the General Assembly, following the same approach as the
one adopted in the previous year, upheld the rights of the people
of East Timor and strongly criticized the action of Indonesia
(resolution 31/53). It should be noted, however, that Indonesia's
claim that East Timor should be integrated into its territory
was rejected solely in order to uphold the rights of the people
of East Timor but not to protect the rights and duties of the
State of Portugal in relation to East Timor or the status of
Portugal as the administering Power. In 1977 the General Assembly
kept to the outline of the previous year's resolution (resolution
32/34); the Government of Portugal did not feature in this resolution
at all.
.....In 1978 the General Assembly
desisted from its rejection of Indonesia's claim that East Timor
had been integrated. The 1978 resolution made no request for
the withdrawal of the Indonesian military from East Timor, but
emphasized the inalienable right of the people of East Timor
to self-determination and independence, and the legitimacy of
their struggle to exercise that right (resolution 33/39). Since
then the position of the General Assembly has remained the same;
that is, the emphasis has been upon the relief of the people
of East Timor (see resolutions 34/40, 35/27 and 36/50).
16. In 1980 the General
Assembly welcomed the diplomatic initiative taken by the Government
of Portugal with a view to finding a comprehensive solution to
the problem of East Timor, and indicated that the General Assembly
had heard the statements of the representative of Portugal (as
the administering Power), the representative of Indonesia, various
East Timorese petitioners and representatives of non-governmental
organizations, as well as the representative of FRETILIN (resolution
35/27).
.....In 1982 the General Assembly,
after having heard the statements of the representatives of Portugal,
Indonesia, FRETILIN and others, requested the Secretary-General
to initiate consultations with all parties directly concerned
with a view to exploring avenues for achieving a comprehensive
settlement of the problem (resolution 37/30). The consultations
thus requested in the 1982 resolution have not yet yielded any
fruitful result.
.....The General Assembly has included
an item on the "Question of East Timor" on the agenda
of every session since 1983. However, on the recommendation of
the General Committee, the General Assembly has deferred consideration
of the item of East Timor to the subsequent session ever since
that time. The question of East Timor may be said to be a subject
which has been shelved since 1983.
17. Portugal, which was
willing to grant independence to the people of East Timor under
the new Constitution of 1974, has not exercised any authority
over the Territory ever since the local authority was forced
to leave East Timor in 1975 on account of the turmoil in the
island. Portugal has not, since 1974, supplied any information
or statistics as required under the United Nations Charter and
under the 1960 "Declaration on Decolonization". The
United Nations, when dealing with the problem of East Timor since
1976, has never indicated that Portugal should have the right
and the duty to administer this area as a non-self-governing
territory.
.....The authority of Indonesia
has been exercised in the Territory for nearly 20 years since
that time. The United Nations has not given its approval to the
annexation of East Timor by Indonesia. However the rejection
of Indonesia's claim that East Timor should be integrated into
its territory disappeared from the 1978 resolution and the demand
for the withdrawal of the Indonesian army ceased to be made.
The fact is that the interest of the General Assembly was directed
more to humanitarian aid than to the form of administration of
the Territory.
18. The incident which
took place in 1991 at the Santa Cruz Cemetery in Dili in East
Timor was extremely serious from this very standpoint. Whether
the right of the people of East Timor to self-determination has
been duly respected by Indonesia may well be questioned in some
other proceedings before the Court or in the different fora of
the United Nations.
............................................................................................
19. Irrespective of the status
of East Timor--which is still in abeyance according to the United
Nations--and irrespective of the rights of the people of East
Timor to self-determination guaranteed by the United Nations
Charter, it is clear that Portugal has not been considered--at
least since the early 1980s--to be a coastal State lying opposite
to Australia and that in 1991, when Portugal's Application was
filed in the Registry of the Court, it did not have any authority
over the region of East Timor, from the coast of which the continental
shelf extends southwards in the Timor Sea.
20. It follows that Portugal lacks standing as an Applicant State in this proceeding which relates to the continental shelf extending southward into the Timor Sea from the coast of East Timor in the "Timor Gap". For this reason alone, the Court does not, in my view, have jurisdiction to entertain the Application of Portugal and the Application must be dismissed.
(Signed) Shigeru ODA.
Notes & Questions
1.
What is the source of the right of self-determination of the
people of East Timor, as claimed by Portugal?
2. What was the reason(s) for Portugal not joining Indonesia as a party to this suit?
3.
Did the ICJ effectively ignore the eight UN Security Council
and General Assembly resolutions regarding East
Timor's right to self-determination?
4. Did the ICJ properly dismiss this case, even if it appeared to pay only lip service to the principle of.self-determination?
5. Did
the Court really do no more than dodge the issues, because Indonesia
would not honor any judicial
affirmation of the right of self-determination? Was this the
essential message in Judge Oda's lengthy Concurring
Opinion?
6. In June 1998, Indonesia's president offered residents of this territory a special status, whereby East Timor's culture and religion would be recognized, although Indonesia would retain political control. While it was not considered a serious gesture, it did signal willingness by Indonesia to improve the situation in its "27th province." In August 1998, Indonesia and Portugal announced an agreement on broad outlines of an autonomy plan for East Timor. The inhabitants would have local self-government and control of educational and cultural affairs. Indonesia would keep control over foreign, military, and monetary affairs. Indonesia did not answer the question, however, whether it thus intended to alter its position on absolute sovereignty over East Timor. Further analysis is available in G. Gunn, East Timor and the United Nations: The Case for Intervention (Patchogue, NY: Red Sea Press, 1997). Australia is the only Western nation to recognize Indonesian sovereignty over East Timor. In 1999, Indonesia and Portugal agreed that the residents of East Timor should choose between greater autonomy and independence. Shortly thereafter, anti-independence militiamen massacred twenty-five people in a Catholic churchyard after they had sought refuge from Indonesian forces.
7. The UN Security Council has an interest, premised not only upon its defense of free peoples, but also the UN having sponsored the August, 1999 elections in East Timor--which impacts the credibility of all UN-brokered elections. The US interest is that, in a Muslim world which does not always favor western values, Indonesia is a friend. The new President of Indonesia has fortunately opted to permit a UN force to enter East Timor to help restore the peace. In June, 1999, the UN Security Council resolved to create a UN mission in East Timor. See UN SC Res. 1246 S/RES/1246 (1999) at <http://www.un.org/Docs/scres/1999/99sc1246.htm>. In September, 1999, the UN-organized referendum in East Timor resulted in pro-Indonesian paramilitary forces terrorizing the local populace--during and after the people voted in favor of independence. The UN Security Council thus condemned Indonesia for its failure to exercise control over both pro-Indonesian paramilitary and military forces. The Council also called upon Indonesia to allow an international peacekeeping force to enter the area to restore the peace. Australia withdrew its peacekeeping troops from East Timor in February, 2000. This event was part of the scheduled handover of military responsibility to uninvolved UN forces, including troops from Brazil, Portugal, and Kenya.
8.
The Security Council authorized
the establishment of a multinational force under a unified command
structure. The multilateral force is tasked with restoring peace
and security, protecting and supporting the United Nations Mission
in East Timor (UNAMET), and facilitating humanitarian assistance
operations. The States participating in the multinational force
are authorized to take all necessary measures to fulfill this
mandate. The Council also agreed that the multinational force
is to be collectively deployed in East Timor until replaced by
a UN peacekeeping operation as quickly as possible.
.....Security
Council Resolution 1272 (October 25, 1999), rendered under the
Council's UN Charter, Chapter VII power, unanimously established
a United Nations Transitional Administration in East Timor (UNTAET).
That entity is responsible for the administration of East Timor.
It is authorized to exercise all legislative and executive authority,
including the administrative justice. UNTAET is scheduled to
be operational until January 31, 2001. For story, see <http://www.un.org/Docs/scres/1999/99sc1272.htm>.
.....In
February, 2000, a United Nations panel reccommended creation
of a human rights tribunal for East Timor. Violence erupted between
the Timorese people and the Indonesian military in September.
(Washington Post: <http://www.washingtonpost.com/wp-srv/WPlate/2000-01/31/108l-013100-idx.html>.)
9. In July, 2000, the first UN soldier (in a force of 8,500) was slain in East Timor. A New Zealander was shot during a clash with armed opponents of independence. His patrol was pursuing a band who had crossed from Indonesian-ruled West Timor. This was the third serious attack on UN soldiers since their arrival in 1999. Source: Associated Press.
10.
The United Nations Transitional Administration in East Timor
(UNTAET) Special Representative of the Secretary-General (aka
the "Transitional Administrator") promulgated Regulation
2000/24 establishing a "legislative mechanism that further
enhances the participation of the East Timorese people in the
decision-making process" during the East Timor transitional
administration. The represented organizations include: the Roman
Catholic Church in East Timor; the Protestant church denominations
in East Timor; the Muslim community in East Timor; the Timorese
NGO forum; and the various political districts of East Timor.
(The sub-district development councils elect district representatives.)
.....The
U.N. Security Council resolved that further measures be taken
to delegate authority to the East Timorese people regarding transition
to independence. The SC thus encouraged efforts to achieve the
goal of independence for East Timor by the end of 2001. It also
requested the U.N. Secretary-General's Special Representative
to continue taking steps to delegate to the East Timorese people
"progressively further authority" within the UNTAET
until authority is fully transferred to the government of "an
independent state of East Timor." The Security Council extended
the mandate of the United Nations Transitional Administration
in East Timor until January 31, 2002, which recognizes the "possible
need for adjustments related to the independence timetable."
UNTAET will continue to fully support the transition to independence.
UNSC Res. 1338 (On the situation in East Timor), S/RES/1338 (January
31, 2001). 9,000 UN troops have been stationed in East Timor
since the 1999 massacre of hundreds, when the results of a referendum
favoring independence were announced.
.....In
August, 2001, the people voted in their first free elections--following
four centuries under Portuguese control and twenty-six years
of occupation by Indonesia. In May 2002, representatives of 34
nations gathered at the UN in New York to welcome the world's
newest state, while praising the UN role in securing sovereignty
for East Timor and challenging it to build a prosperous democratic
government at peace with its neighbors. US Ambassador to the
UN, John Negroponte, said this day "marks a signal success
for the United Nations.'' Russia's deputy ambassador to the UN,
Andrey Granovsky, said the UN effort to transform the country
would go
down in history "as a clear example of United Nations success.''
See AP, Nations Welcome World's Newest State, NYT
on the Web (May 21, 2002).
12. In December 2001, the US National Archives web page by George Washington University obtained and posted online documents showing that the US agreed to Indonesia's 1975 invasion of East Timor. Then Secretary of State Henry Kissinger noted that any nod by the US should be viewed in the (former) Cold War context. Indonesia's Suharto was steadfastly opposed to communism. Viet Nam had just been reunited under the communist leader Ho Chi Ming. Suharto feared that the East Timorese were seeking to separate from Indonesia and the US was uncertain about Moscow's interests. The US thus supplied about 90% of Indonesia's weapons on condition that they be used only for defense and internal security. That invasion resulted in an estimated 200,000 dead. See W. Burr & M. Evans, Ford and Kissinger Gave Green Light to Indonesia's Invasion of East Timor, 1975: New Documents Detail Conversations with Suharto, National Security Archive Electronic Briefing Book No. 62, (Dec. 6, 2001), available at: <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB62>.
13. A number of Kashmiris hope to obtain the same UN-backed assistance in their struggle for independence. A 1948 UN resolution called for a plebecite in Kashmire, when British rule ended. It was never held. Thus, the UN does not recognize either India nor Pakistan's occuparion of their respective poprtions of Kashmire.
14. In 1998, the Canadian Supreme Court articulated the following limitation on self-determination, summarized in paragraphs 123 and 138 of its opinion (italics added):
.....123 International law grants the right to self-determination
to "peoples." Accordingly, access to the right requires
the threshold step of characterizing as a people the group seeking
self-determination. However, as the right to self-determination
has developed by virtue of a combination of international agreements
and conventions, coupled with state practice, with little formal
elaboration of the definition of "peoples," the result
has been that the precise meaning of the term "peoples"
remains somewhat uncertain.
............................................................................ . . .
.....138 In summary, the international law right to
self-determination only generates, at best, a right to external
self-determination in situations of former colonies; where a
people is oppressed, as for example under foreign military occupation;
or where a definable group is denied meaningful access to government
to pursue their political, economic, social and cultural development.
In all three situations, the people in question are entitled
to a right to external self-determination because they have been
denied the ability to exert internally their right to self-determination.
Such exceptional circumstances are manifestly inapplicable to
Quebec under existing conditions. Accordingly, neither the population
of the province of Quebec, even if characterized in terms of
"people" or "peoples," nor its representative
institutions, the National Assembly, the legislature or government
of Quebec, possess a right, under international law, to secede
unilaterally from Canada.
In the Matter of a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, available on the World Wide Web at:
<http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html>.
Has the Canadian Supreme Court inserted a limit not embraced by the ICJ in its East Timor case? Does the East Timor decision exclude this possible limitation in International Law?
15. Further reading is available in A. Cassese, The Holders of the Right to Self-Determination and the Means of Ensuring Observance of the Right, ch. 6, in Self-Determination of Peoples: A Legal Reappraisal 141 (Cambridge, Eng.: Cambridge Univ. Press, 1995) & S. Toope, Self-Determination--Canada--Quebec--right to secede under constitutional law and public international law--role of international law in Canadian courts, 93 Amer. J. Int'l Law 519 (1999).
Go ToChapter 2, Section 2.4, p.79, after Case ....Concerning East Timor reference to this web page.