The Case Concerning East Timor and Self-determination

Introduction

1. In the Case Concerning East Timor(Portugal v. Australia),[1] the International Court of Justice
(ICJ) refused to rule on the validity of the Timor Gap Treaty between Australia and Indonesia due
to the absence of Indonesia as a third party not consenting to the jurisdiction of the Court. The
Court could not exercise jurisdiction because in ruling on Portugal's claims, it would have to rule
on the lawfulness of Indonesia's conduct in Indonesia's absence.[2] However, the Court did note
enough in its "non-statement" of the case to support the fact that East Timor remains a non-self-
governing territory under Chapter XI of the United Nations (UN) Charter.[3]

The Principle of Self-Determination

2. Self-determination means the right to control one's own destiny. By virtue of the principle of
equal rights and self-determination of people enshrined in the Charter of the United Nations, all
people have the right to freely determine, without external interference, their political statute and
to pursue their economic, social and cultural development, and every State has the duty to respect
this right in accordance with the Charter of the United Nations.[4]
3. Self-determination is a well established principle now, but there is some uncertainty about its
origins. Some scholars claim the concept of self-determination existed at the time of the Greek
city states.[5] Some attributed the principle of self-determination to the French and American
revolutions.[6] However, legal scholars generally agree that US President Wilson "elevated the
principle of self-determination to an international level"[7] through his Fourteen Points,
recognizing "that every people has a right to choose the sovereignty under which they shall
live...."[8] The League of Nations implicitly accepted the principle of self-
determination,[9] thereby leading to its subsequent incorporation into the United Nations
Charter.[10]
4. The evolution of the principle of self-determination in modern society has come about largely as
the result of three General Assembly Resolutions. First, in 1960, the General Assembly adopted
Resolution 1514 which stated that all people have the right to self-determination. The resolution,
moreover, called on administering powers of trust and non-self-governing territories to take
immediate steps to transfer without reservation all powers to the peoples of such territories "in
accordance with their freely expressed will and desire."[11] Next, in Resolution 1541, the
General Assembly spelled out principles for determining whether a territory was a non-self-
governing territory.[12] The resolution also listed the three modes of implementing the right of
self-determination.[13] Finally, the General Assembly took a further step in the development of
the principle of self-determination when it adopted Resolution 2625, which recognized that, under
the U.N. Charter, a non-self-governing territory has a separate status from its administering
power.[14] As these resolutions clearly demonstrate, the principle of self-determination, at least
with regards to non-self-governing territories,[15] is a matter of international concern. The United
Nations, therefore, is not limited by Article 2(7) in action respecting self-determination for non-
self-governing territories.[16]
5. By the 1960's and "70's, ICJ advisory opinions,[17] treaties[18] and the charters of regional
organizations[19] expressed support for self-determination. Today, the international community
considers the right to self-determination jus cogens, that imposes binding obligations on all nation
states.[20] All peoples possess an affirmative right to self-determination which is "seen as a
prerequisite to any genuine enjoyment of any of the human rights."[21]
6. Nonetheless, confusion remains about the scope and character of self-determination. Some
scholars feel the right extends only to colonies or areas subject to foreign control.[22] This so
 called "external self-determination" gives people subject to colonization or foreign occupation the
right to govern their own affairs free from outside interference.[23] Others disagree, saying that
the right to self-determination belongs to all peoples, including minorities and indigenous people
living within existing countries.[24] This broader definition known as "internal self-
determination", gives minorities and indigenous people control over their own destinies. While
some people believe that the term includes the right to succeed, others advocate no more than the
right to select a representative government using a legitimate political process.[25] Although
unclear in this East Timor opinion delivered by the ICJ, the Majority appears to adopt the external
self-determination position, possible out of fear of alienating its members with substantial
minority populations. Since East Timor's relationship with Indonesia falls within the narrower
category, a deeper look at external self-determination is warranted.
7. The U.N. Charter forbids nation states from interfering with the territorial integrity of other nation
states.[26] Similarly, external self-determination is the right of individuals to be independent and
free from outside interference.[27] The U.N. Declaration on the Granting of Independence to
Colonial Countries and People, found the "subjection of peoples to alien subjugation, domination
and exploitation" contrary to the U.N. Charter and "an impediment to the promotion of world
peace and cooperation."[28] Although external self-determination applies in both the colonization
and foreign domination contexts, colonial claims rarely arise today. Instead, claims increasingly
emerge from the foreign domination of one state over the other, as with the Indonesian
occupation of East Timor.
8. Part of the increase in external self-determination claims may result from an expansion in the
traditional definition of foreign domination to include militaristic domination, such as when the
troops of one country are stationed in another; economic domination, when one or more countries
economically dominate another; and cultural domination, where one culture dominates the other.
In Self-Determination: Affirmative Right or Mere Rhetoric?, Halim Morris specifically mentions
the Lebanese objection to the presence of Syrian and Israeli troops in their country, and American
troops in Panama and Okinawa as forms of militaristic foreign domination. Various third world
nations view economic domination by developed nations as a lack of economic self-
determination. Moreover, various ethnic groups throughout the world have begun to assert a right
to cultural self-determination in response to foreign domination centering on language and
religion. Morris notes that these claims for external self-determination have been largely ignored
by the international community. Indonesia's 1975 invasion of East Timor was no exception.
Despite hundreds of thousands of deaths attributed to the invasion, the outside world paid little
attention to the area until November of 1991 when Indonesian forces killed an estimated two-
hundred and seventy protestors in a cemetery in Dili.[29]

The Status of East Timor under International Law

9. In light of the principle of non-intervention (Article 2(7) of UN Chapter) and the principle of self-
determination, the status of East Timor under international law is of fundamental importance. If
East Timor is an Indonesian province (as claimed by Indonesia), then the situation there is
arguably not a matter of international concern and generally is therefore outside of U.N.
jurisdiction. Moreover, if the people of East Timor have already exercised their right of self-
determination, then that principle is inapplicable to the consideration of U.N. action there. On the
other hand, if Indonesia's annexation of East Timor was illegal (as claimed by Portugal), then the
territory remains a non-self-governing territory statute. As such, matters involving it would be of
international concern.[30] Unfortunately, East Timor's status under international law was
ambiguous. Although the International Court of Justice (ICJ) had the opportunity to answer the
question in East Timor, it refused to do so.[31]Nevertheless, in a dissenting opinion, Judge
Weeramantry analyzed the matter at some length.[32] Because of the great importance of this
issue to U.N. action in East Timor, I will review the arguments on both sides posed before the
 ICJ. Where appropriate, I will consider points made by Judge Weeramantry. However, I want to
remind again that the ICJ gave up the chance to address the East Timor's statute under
international law. The following opinion is my analysis according to some relevant arguments.

An Indonesian Province?

10. There are two possible arguments for determining that East Timor is an Indonesian province. The
first is that the people of East Timor exercised their right of self-determination when the "People's
Assembly" formally requested integration with Indonesia. This argument must fail because it is
inconsistent with Resolution 1541, which established the legitimate modes of exercising the right
of self-determination.[33] While integration with an independent state is an alternative, it is
subject to two important limitations. First, "the integrating territory should have attained an
advanced stage of self-government with free political institutions, so that its peoples would have
the capacity to make a responsible choice through informed and democratic processes."[34] It is
doubtful that East Timor achieved such an advanced stage of self-government between December
1975 and May 1976. Even assuming it had, a second requirement undoubtedly was not met: "the
integration should be the result of the freely expressed wishes of the territory's peoples acting
with full knowledge of the change in their status, their wishes having been expressed through
informed and democratic processes, impartially conducted and based on universal
suffrage."[35] On the contrary, integration with Indonesia was not based on universal suffrage but
on a "Regional Popular Assembly" of questionable legitimacy.[36] Furthermore, the fact that the
territory was under Indonesian occupation at the time of the request makes it doubtful that the
"People's Assembly" represented freely expressed wishes.
11. The second argument for East Timor being considered an Indonesian province is that even if the
people of East Timor did not exercise their right of self-determination, East Timor is a part of
Indonesia by virtue of effective occupation. This argument must fail because Portugal's continued
protests and the continued presence of the question of East Timor on the General Assembly's
agenda precluded Indonesia's consolidation of title over East Timor.[37]
12. If not an Indonesian province, a final argument for Indonesian jurisdiction over East Timor is that
the territory is a non-self-governing territory under Indonesian administration. In East Timor,
Australia stated that recognition of Indonesian sovereignty over East Timor did not involve a
denial of its status as a non-self-governing territory. This position, as Judge Weeramantry noted,
does not make much sense. In any event, the authority exercised by Indonesia over East Timor
was clearly distinguishable from that of a typical administering power. [38] Even if we regard
Indonesia as an administering power. It has breached its obligations in many ways.

A Non-Self-Governing Territory?

13. If not an Indonesian province, then East Timor is a non-self-governing territory. In addition to the
counter-arguments discussed above, there are two positive arguments for East Timor being a non-
self-governing territory. The first finds its basis in the U.N. Charter itself; the second in U.N.
resolutions. First, Article 73(e) of the Charter speaks of the relationship between an administering
power and a non-self-governing territory as a "sacred trust."[39] According to Judge
Weeramantry, the idea that the use of force by a third country could win out over this "sacred
trust" "seems to run counter to the entire scheme of the United Nations Charter." Judge
Weeramantry noted three legal concerns. First, granting importance to the loss of physical control
over the territory, regardless of the means by which control was lost, is a dangerous proposition.
Second, precedents do not support such a proposition. Third, "there is more to the status of
administering power than mere physical control."
14. The second argument for East Timor being a non-self-governing territory is that General
Assembly and Security Council resolutions have recognized it as such. Judge Weeramantry
noted, "questions of the termination of dependent territory status upon the exercise of the right of
self-determination have... long been matters recognized as being within the scope of the General
Assembly's authority." According to Judge Weeramantry, "legal consequences follow from these
determinations." Judge Weeramantry also noted that the General Assembly resolutions were
confirmed by Security Council resolutions on the matter. The argument of desuetude was rejected
by Judge Weeramantry on the ground that such an argument, "implying, as it does that the matter
is a dead issue, cannot succeed if the United Nations itself elects to treat the issue as live." For the
same reason, he rejected the argument that the resolutions have been nullified by supervening
events.
15. Although Judge Weeramantry concluded that East Timor is "a territory unquestionably entitled to
self-determination," nevertheless, the question of East Timor's status under international law
remained ambiguous at that time being because of the ICJ's failure to address the issue because
the jurisdictional problem.

East Timor's Territorial Sovereignty

16. The statements of the ICJ in the Case Concerning East Timor do not support either the
proposition that Indonesia officially annexed East Timor, or that Portugal remains the
administering Power over the territory. Rather, the Court suggests a novel situation: a non-self-
governing territory controlled by a non-traditional administering power with an existing right of
self-determination. Trends in the principle of self-determination in international law support this
suggestion.[40]
17. By questioning Portugal's status as the administering authority and subsequently declining to rule
on Indonesia's status regarding East Timor, the I.C.J. implies one of three alternative situations
concerning East Timor's present status: Portugal remains a limited administering authority over
East Timor, with East Timor remaining a non-self-governing territory; East Timor remains a non-
self-governing territory with Indonesia as its new administering authority; or Indonesia has
annexed East Timor.[41] Each scenario results in a U.N. departure from the general standard that
only European colonies have the right to self-determination. The facts, applicable cases, and
current trends in international law all point to the conclusion that it seemed Indonesia had
exercised certain rights and obligations toward East Timor as a substituted administering power,
but this is questionable.
18. Even if Indonesia acted as an administering power, Indonesia owes a duty to East Timor to
protect East Timor's territorial sovereignty and natural resources. Evidently, Indonesia has
breached this duty in a number of ways: by continued human rights violations against the East
Timorese; by political, social, and cultural repression; and by entering into treaties on behalf of
the East Timorese for self-serving economic reasons. Indonesia has thus violated the territorial
sovereignty of the East Timorese. Consequently, the Timor Gap Treaty serves as a violation of
East Timor's territorial sovereignty and should be considered illegal under international law.

Conclusion: Legal and Political Implications of this Case

19. As noted supra, In this Case Concerning East Timor, the I.C.J. refused to rule on the validity of
the Timor Gap Treaty due to the absence of Indonesia as a third party not consenting to the
jurisdiction of the Court. The Court did state enough in its "non-statement" of the case to support
the fact that East Timor remains a non-self-governing territory under Chapter XI of the U.N.
Charter. The Court would not expressly recognize Portugal's continued status as the administering
Power over East Timor. Considering the importance of Indonesia's absence, their twenty-five
 year control over East Timor, the rejection by the U.N. of Indonesia's annexation and illegal
occupation of East Timor, and the trends in the application of the principle of self-determination,
it appears that Indonesia had certain rights and interests over East Timor in Portugal's absence.
20. In one important sense, then, it can be said that the court's decision did not so much reject
Portugal's claims as it avoided them. The court's resolution of the case had some superficial
appeal. At a deeper level, however, its rigid and formalistic approach side-stepped the substantive
questions. And in so doing, the court let Portugal's legitimate political grievance and East
Timorese's unassailable moral rights become obscured by the misapplication of procedural
requirements. The ICJ, by its prudential diffidence, ensures that the question of East Timor will,
for the time being, remained just that: a question-an outcome that does not bode well for the
subjugated and suffering people of East Timor. Worse still, Indonesia may, incorrectly, interpret
the decision as a vindication of its brutal policies towards East Timor.
21. The decision has wider and equally disquieting implications. First, by refusing to address the
heart of the case, the admittedly politically charged issue of East Timorese self-determination, the
Court did not help its standing in the international community as an effective forum for
international dispute resolution, rendering its voice merely "sound and fury signifying
nothing".[42] Second, the seeming ease and matter-of-fact manner with which the court invoked
the indispensable third party doctrine in a case involving violations of an erga omnes obligation
does not foretell a satisfactory outcome for future cases involving a similar right. Third, despite
its recurrence in international politics, self-determination has eluded a precise workable definition
in international law. The court could have used the East Timor Case to infuse the principle with a
modicum of legal determinacy and define in detail the legal and practical consequences flowing
from it-a potentially salutary result as the principle will continue to occupy, if not haunt,
international politics for some time to come.
22. An ICJ ruling favorably disposed toward East Timorese right to self- determination could have
vivified the question of East Timor in the UN and galvanized the world body into taking concrete
action to ameliorate the predicament of the East Timorese. In the meantime, the forlorn people of
East Timor (those that have survived the struggle for independence, anyway), not quite inured to
the bane of occupation, may rightly ask: how can international law, by way of jurisdictional
contortions, remain so obstinate and the international community, by way of neglect, so obtuse
about a cause so legally and morally crystalline?
23. The recent history of East Timor people is well known.[43] It is not my task to elaborate these
actions in this case study note, but I here will briefly introduce the milestones of this East Timor
story. U.N. action with respect to East Timor is manifest in six Security Council resolutions
adopted between May 7 and October 25, 1999, and three resolutions in the following three
years.[44] Each of these resolutions authorized some form of direct action, by or on behalf of the
United Nations, in East Timor. On 30 August 1999, in a United Nations-sponsored 'popular
consultation', the people of East Timor voted overwhelmingly(78.5 percent) to reject the
Indonesian offer of 'special autonomy' in favor of a United Nations-supervised transition to
independent statehood. From then on, events moved apace. On 15 September 1999, the Security
Council authorised the establishment of a multinational force (INTERFET) with a mandate to
restore peace and security in East Timor.[45] On 15 October 1999, the Indonesian People's
Consultative Assembly repealed the infamous law of July 1976 under which East Timor had been
annexed,[46] paving the way for the United Nations Transitional Administration in East Timor
(UNTAET) to assume control of the territory.[47] And by November 1999, the last of the
Indonesian troops had, finally, left East Timor. On August 2001, Timorese people vote for 88-
member Constituent Assembly, responsible for drafting and ratifying a constitution for the
fledgling nation. On 17 April 2002, UN officially declares Xanana Gusmo winner of first-ever
presidential election. On 20 May 2002, UN hands over authority to democratically elected
government; President Gusmo swears in Parliament. Thus Timor-Leste became an independent
country. And, on 27 September 2002, UN General Assembly admits Timor-Leste as the 191st
 Member State of the United Nations. However, there are still many challenges facing this world's
newest nation, one of the poorest, smallest and most traumatized countries on the globe.[48]

Companion to East Timor - The case before the International Court of

Justice
The case before the International Court of Justice

The Timor Gap Treaty between Australia and Indonesia entered into force on 9 February
1991. Portugal brought an action against Australia in the International Court of Justice,
which began hearing arguments in 1995. Since Indonesia had not accepted the Court's
compulsory jurisdiction, Portugal could not sue it directly. An important precedent in
Portugal's action against Australia was an ICJ ruling in 1971 concerning South Africa's
presence in Namibia in defiance of UN Security Council resolutions. The ICJ had ruled that
UN member states were obliged to refrain from any action that would imply recognition of
the legality of South Africa's presence in Namibia. Australia may have been in violation of a
similar duty to refrain from legitimizing the Indonesian occupation of East Timor via the
Timor Gap Treaty.

Australian support groups openly sided with Portugal against their own government, writing
letters to the editor, holding press conferences and speaking up against the legality of the
Timor Gap Treaty. An Australian lawyer, Ms Sasha Stepan, appeared on the bench with the
Portuguese legal team. Portugal's Ambassador to the Netherlands (the seat of the ICJ), Mr.
Antonio Cascais, thanked the Australian people for their support. As expected, the
Portuguese side argued that Australia had 'failed to observe the obligation to respect the
duties and powers of Portugal as the administering Power of East Timor and the right of the
people of East Timor to self-determination and the related rights.' Portugal's argument was
that there was a general obligation for states to not recognize East Timor's annexation and
that Australia was therefore obliged not to deal with Indonesia in respect of the territory.

Foreign Minister Gareth Evans briefed the Australian Cabinet in confidence that the
Solicitor-General, Mr. Gavan Griffiths, regarded the outcome as 'uncertain' and that ICJ
judges could criticize Australia in a way that would 'have implications for our policy.'
Australia would have to 'address aspects of the self-determination argument which the
Government had so far avoided.'1 Ever conscious that East Timor's right of self-
determination was a major obstacle to its case, Australia forewarned the Indonesian
government that it would be forced to acknowledge the continued existence of this right. 2
Australia claimed in court that it was being sued in place of Indonesia the real target of
Portugal's claim. It argued that for the ICJ to rule on Australia's conduct, it would first have
to rule on the lawfulness of Indonesia's invasion and occupation of East Timor. However,
since Indonesia had not accepted the ICJ's jurisdiction, it submitted that the ICJ could not
adjudicate on the matter. Australia's legal representatives were compelled to argue in
contradiction to their long-standing position that even though Australia was dealing with
Indonesia, it still recognized that the people of East Timor had the right to self-determination
and was a non-self-governing territory under Chapter XI of the UN Charter. They said that
Australia recognized this position even before Portugal accepted it in 1974, and it dealt with
Portugal because general international law imposed no obligations on itself not to deal with
Portugal. Similarly, they said, Australia was dealing with Indonesia because general
international law imposed no obligations on itself not to deal with Indonesia.

Portugal attempted to answer Australia's objection in two ways. First, it argued that since
the right of self-determination was an obligation erga omnes, Australia was obliged to
respect East Timor's right of self-determination irrespective of the obligations of Indonesia.
In a majority verdict, the ICJ accepted Portugal's argument but denied the implications that
were said to flow from it, saying:

the erga omnes character of a norm and the rule of consent to jurisdiction are two different
things. 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, even if the right in question is a right erga omnes.

In other words, the ICJ held that it could not adjudicate upon Australia's conduct without first
deciding on the lawfulness of Indonesia's conduct. Given the 'fundamental principle' in the
ICJ's Statute that it could only exercise jurisdiction over a State with its consent, the Court
concluded that it could not rule on Portugal's claims.

Portugal's second argument was that the United Nations had already decided that East
Timor remained a self-determination territory despite Indonesia's ongoing occupation. The
ICJ's majority view of this argument was that General Assembly and Security Council
resolutions nominating Portugal's role as the administering Power of East Timor did not
compel Australia to deal exclusively with it as regards the continental shelf of East Timor. It
noted that 'several States have concluded with Indonesia treaties capable of application to
East Timor but which do not include any reservation in regard to that Territory.'

Two judges dissented from the majority position. Judge Weeramantry and Judge ad hoc
Skubiszewski took the view that Australia had a duty not to recognize East Timor's
annexation, and that such a verdict against Australia did not imply a finding against the
rights of Indonesia. Many legal experts criticized the ICJ's majority verdict, which was
clearly influenced by the fact that the UN's member states were not overwhelmingly in
favour of East Timorese independence. Had the situation been less ambivalent, the ICJ's
verdict may well have been different.

Portugal could also have advanced a more robust legal argument. It relied on East Timor's
right of self-determination as the basis of its argument that Australia had an obligation to not
recognize the annexation. The only way the ICJ could adjudicate on this was to find that
Indonesia was unlawfully violating the right of self-determination something it was not
prepared to do, since Indonesia had not accepted the Court's jurisdiction. Had Portugal
relied on the obligation to not recognize a change of territory acquired by force, the situation
may well have been different. All states are obliged not to recognize a change of territory
acquired by force, regardless of the legality of the use of force. The ICJ would only have
needed to find that Indonesia's occupation resulted from the use of force, whether or not
that force was unlawful. The legal scholar James Crawford explains this concept by an
analogy:

For example it does not matter whether Israel was acting in self-defence in occupying the
West Bank and the Gaza Strip during the Six day War: whether or not it was then acting
lawfully, third States are obliged not to recognize its sovereignty over those territories
pending a final settlement.3

However, the ICJ made an important observation by declaring that East Timor's right to self-
determination was 'irreproachable,' that East Timor remained a Non-Self-Governing
Territory and that its people retained the right to self-determination. It is worth noting that
since the ICJ had decided that the case could not proceed to merits because of Indonesian
interests, it need not have made any additional comments on self determination. The fact
that it did showed that it wanted to place these points on the record as a judicial
determination.
Dissenting opinion of Judge Skubiszewski

In Judge Skubiszewski's view, the Court has jurisdiction in this case and the
Portuguese claims are admissible. The requirements of judicial propriety are also met.
The Court can render a decision on the merits.

In particular, even if the Court finds itself without jurisdiction to adjudicate on any
issue relating to the Timor Gap Treaty, the Court could deal with the first submission
of Portugal, i.e., with the status of East Timor, the applicability to that territory of the
principle of self-determination and some other basic principles of international law,
and the position of Portugal as administering Power. This is so because the first
submission can be separated from the remaining submissions which concern
exclusively the specific issues of the treaty. It is true that the Court refers to the status
of the territory and to self- determination, and in this respect Judge Skubiszewski
concurs with the Court (as he also does in regard to the Court's rejection of the
Australian objection that there is no dispute between the Parties). But Judge
Skubiszewski thinks that the Court should have elaborated on these matters (as there
are some unclear points) and included the result of such elaboration in the operative
clause. By not doing so, the Court adopted a narrow view of its function.

The Monetary Gold rule does not exclude jurisdiction in this case. The premise for the
application of the rule is lacking here: to decide on all the submissions of Portugal, the
Court need not adjudicate on any powers, rights and duties of Indonesia. In this case
the Court adopted an extensive interpretation of the Monetary Gold rule; this
interpretation contrasts with its earlier practice. The Court has gone beyond the limit
of the operation of Monetary Gold.

The Court can decide on the lawfulness of some unilateral acts of Australia leading to
the conclusion of the Treaty. A decision thereon does not imply any adjudication on
Indonesia, nor does it involve any finding on the validity of the Treaty (which the
Court is not competent to make). The conduct of Australia can be assessed in the light
of United Nations law and resolutions. Such assessment is not linked to any passing
upon Indonesia's activities.

Portugal has the capacity to act before the Court in this case on behalf of East Timor
and to vindicate the respect for its position as administering Power.

In discussing and defining the present status of the Territory (i.e., after annexation by
Indonesia) the rule of non-recognition is relevant. In the instance of East Timor,
recognition of annexation erodes self-determination. The position of Portugal as
administering Power was questioned by Australia; the Court should have clarified this
issue. It is within its jurisdiction.
Even if the Court's Judgment is legally correct (which it is not), the Court's function
cannot be reduced to legal correctness alone. Otherwise the Court would restrict its
function to the detriment of justice and of the basic constitutional rule that it is "the
principal judicial organ of the United Nations". That restrictive approach is illustrated
by the Judgment and it is cause for concern.