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Page
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15 Emory Int'l L. Rev. 267, *

63 of 100 DOCUMENTS

Copyright (c) 2001 Emory University School of Law

Emory International Law Review

Spring, 2001

15 Emory Int'l L. Rev. 267

LENGTH: 12469 words

COMMENT: DETERMINATION OF SELF IN A DECOLONIZED TERRITORY: THE DUTCH, THE INDONE-

SIANS, AND THE EAST TIMORESE

NAME: Stephanie A. Paulk*

BIO: * Executive Managing Editor, Emory International Law Review; J.D, Emory University School of Law, May
2001; B.A., English Literature, Columbia University, 1994. The author would like to thank Professor Tim Terrell for his
guidance and assistance in preparing this comment. Many thanks also to the others who contributed their time and
thoughts: Professor David Bederman, Phyllis Hamilton, and Gordon Griffith. Most especially, thank you to my fiance,
Kelly Carroll, and to my family for their generous support.

LEXISNEXIS SUMMARY:
... It may seem that the absence of assistance was a function simply of practical considerations and realpolitik conces-
sions in the international arena, but these political realities are only the beginning of an inquiry into how international
law failed East Timor. ... Sovereignty is much more than a right, because it is the es-
sence of statehood, and almost all international law derives from the principle
of sovereignty. ... This is exactly the kind of state behavior that international law since World War II has been
crafted to prevent. ... There are two dimensions to self-determination in international law: internal and external. ... In
current international law, and more so twenty years ago, the doctrine of humanitarian intervention is "generally consid-
ered ... to be now outdated. ... International Law Versus Practical Considerations ... If the goal of international law is to
promote peace and stability, as well as friendly cooperation among nations, the method should match the goal. ... In-
ternational law should focus on situations where procedures fail, rather than myopically championing the Third World
against the First. ... This reliance echoes the continued primacy of sovereignty and statehood in international law. ... An
International Criminal Court for the prosecution of individuals responsible for violations of international law may soon
be established. ... International law must continue to work toward the future, adapting to situations as they exist, but
need not continue to accept the worst those situations have to offer. ...

TEXT:
[*267]
Introduction

In 1975, despite international condemnation, Indonesian military forces subdued and annexed the former Portuguese
colony of East Timor, and the international community took no action. Without effective opposition, Indonesia absorbed
the territory in the absence of any manifestation that this was the will of its residents. n1 The supposed right of self-de-
termination, well established in international legal theory and possessed by the people of East Timor in 1975 n2 was
functionally irrelevant to invaders and onlookers alike. For the residents of the territory at the time of the annexation,
the resolution of the former colony's international identity at a global level was in no way equivalent to a resolution of
national identity at an individual level. The problem for the inhabitants of East Timor, unfortunately, was the concept -
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15 Emory Int'l L. Rev. 267, *

the right of self-determination of peoples - itself. Although conceived to help ensure international peace and stabili-
ty, it actually permits and encourages the opposite.
It may seem that the absence of assistance was a function simply of practical considerations and realpolitik conces-
sions in the international arena, but these political realities are only the beginning of an inquiry into how international
law failed East Timor. To understand the [*268] problem fully, the analysis of East Timor must turn to the concept of
self-determination itself. The international community, through the United Nations, has attempted to outlaw aggression
and protect former colonies from predation by promulgating the right of peoples to self-determination. n3 The weak-
nesses of this right become clear in situations like the annexation of East Timor, where the right affords very little real
protection to individual people within the territories of former colonies.
Self-determination of peoples is a concept that gained credence in the aftermath of World Wars I and II, when the
victors redrew the borders of Europe. The idea underlying "respect for the ... self-determination of peoples," n4
essentially by drawing international borders around them, was a hope that it would be possible to create inher-
ently peaceful nations. The doctrine was later invoked by colonial territories in the process of separating from their
colonizers. Thus, as it has developed doctrinally, the right of a people to self-determination
consists of an internationally recognized right that is held, as a group, by in-
dividuals who are internationally recognized as a state-less people in state-
less territory. n5 Possession of this right theoretically entitles a people to go through some process to deter-
mine its allegiance: to join another state or create its own state. This right, then, enables a state-less people to achieve an
international legal personality.
In contrast, existing states do not need this right because states have sovereignty. Sovereignty is much more than a
right, because it is the essence of statehood, and almost all international law derives from the principle of sovereignty.
[*269] States can make treaties with other states, can become members of the United Nations and other international
organizations, and may, for the most part, insist on non-interference from other states. Thus, the narrow right of a people
to self-determination is, in effect, its right to seek sovereignty and to obtain these broad international and territorial
powers. As a mechanism for achieving stability at the global level, the right to self-determination is entirely sensible. As
a mechanism for preserving people at the individual level, the right to self-determination is an incitement to violence at
the regional level.
This Comment examines this contrast as illustrated by the 1975 annexation of East Timor. Parts I through III ex-
plore the underlying facts and legal issues surrounding the annexation. Specifically, Part I presents an overview of the
history of the creation of Indonesia and the annexation of East Timor. Part II provides a general introduction to the law
of self-determination as practiced by the United Nations and the World Court, including an account of the legal debates
over East Timor which followed the annexation. Part III examines how practical considerations and international con-
cerns over sovereignty prevented self-determination in East Timor. This section also argues that the right to self-deter-
mination of peoples is not capable of counteracting the self-interest and the inherent powers of existing states, and
presents current criticism of the right of peoples to self-determination. Part IV argues that these criticisms do not go far
enough. Part IV explores the violence inherent in the concept of "people," and the dangers of reliance upon the right of
peoples to self-determination. This violence and these dangers are very real catalysts for international conflict. Mean-
while, the sovereignty of existing states has effectively blocked the mandate for self-determination of peoples as a
mechanism for the protection of individual rights and dignity.
A new approach to self-determination is necessary if its underlying principal is to survive. Part V of this Comment
[*270] proposes a different understanding of self-determination and concludes that international law must seek and
achieve an alternative international legal basis for protecting the rights of people regardless of international status.
I. History
A. The Creation of Indonesia

Indonesia is an archipelago between Australia and Asia. Before western powers colonized the islands, the inhabitants
comprised more than 200 different groups. n6 Dutch colonization of the islands began in the seventeenth century, and
consisted primarily of Dutch merchant interests with national military backing. n7 Dutch rule, unwanted and dictatorial
in some areas, welcomed in others, transformed the disparate islands, religious groups, and cultures into a single unit.
Dutch rule paved the way to a united Indonesia in three ways. First, Dutch monopolies, using military force, shat-
tered existing economic structures. This included Dutch usurpation of the political power of local rulers by rewarding
obeisance with wealth. Second, the Dutch ruled the entire area as a single administrative unit. Developmental institu-
tions "began to grow and to intervene in the fabric of life in the colony ... . This strengthened the feeling among non-
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15 Emory Int'l L. Rev. 267, *

Europeans in the colony that "control of [*271] the governor-general's palace in Batavia' was the key to mastery of
their affairs." n8 Third, the Dutch inspired widespread resentment of their rule - against the bloody violence of enforced
monopolies and against the "enormous discrepancies in wealth and privilege between Europeans and natives." n9 Out-
right racial discrimination became a factor in the growing resentment once educated natives began working in the
colony's civil service. These individuals soon found they were barred from the senior positions, high salaries, and posh
social lives reserved for Europeans only. n10
These three external factors of Dutch colonial rule leading to a unified Indonesia inspired a local response within
the colony. The independence movement began to develop in the 1920s, and faced stiff resistance from Dutch authori-
ties. Though the various territories had fallen under Dutch control one at a time, their residents could only prevail over
Dutch power by uniting. Also, the class of educated natives working within the colonial structure did not want to give
up the possibility of rule over the whole colony, especially not by handing power back to the weakened, "old order"
aristocracy. n11
The independence movement was motivated to work together to achieve the short-term goal of independence, but
the long-term goals were anything but unified. Some individuals within the movement wanted to graduate from colony
to modern nation, some to establish a Muslim state, some to promote a communist proletariat, and still others simply to
gain power for themselves. The physical and economic violence inflicted by colonization created an [*272] identity
that could only be defined only in opposition to the Dutch authorities and that could only be achieved through separa-
tion by force. As it happened, another country supplied the force. During World War II, the Japanese army occupied the
islands of the archipelago. Following the departure of the occupying Japanese army, nationalist leaders n12 hastened to
declare independence before the Dutch could return. More than four years passed and thousands of Indonesians were
killed before independence was recognized and Dutch forces ceased attempts to physically re-conquer the territory. n13
The new Indonesian government, primarily located in Java, claimed control over all of the formerly Dutch territory,
including West Timor and West Irian.
Even after four years of intense fighting, the Dutch were unwilling to completely release control of the province of
West Irian. n14 Ultimately, however, Holland capitulated to enormous international pressure to decolonize completely.
Ironically, this international pressure also facilitated the speedy, and unwilling, assimilation of West Irian by Indonesia,
through "consultation" rather than a public plebiscite. n15 Indonesia's independent government had [*273] recognized
that the elimination of the colonizers meant elimination of the single unifying factor motivating the nationalists who
made up the new government. Indonesia was searching for new ways of defining itself - particularly as an "archipelagic
state." This required as much control of the entire archipelago as possible, including West Irian, and eventually East
Timor.
There was a legal basis to Indonesia's insistence on inclusion of West Irian in the newly formed state, on the princi-
ple of uti possidetus - which mandates that newly formed states follow pre-existing colonial boundaries. However, no
legal basis for unity could justify the involvement of Indonesia's government in the tight control of what was supposed
to be the West Irian's residents' act of free choice in deciding whether to be a part of Indonesia. n16 This aggressive be-
havior suggests that an ideal, possible, Indonesia, yet to be achieved, was the true goal pursued by the Indonesian gov-
ernment, rather than a reclamation of a pre-existing Indonesia merely cleared of Dutch interlopers. n17 This in-
ternational identity as an archipelagic state was also a factor in Indonesia's interest in East Timor once Portugal consid-
ered decolonization of the tiny colony that shared the island of Timor with the Indonesian province of West Timor.
[*274] There is some evidence that Indonesian interest in the acquisition of the Portuguese colony of East Timor
dates from the time of Indonesian independence, apparently moved by concerns of "national security." n18 Indonesia
became actively interested in acquisition of East Timor in 1974. In April of that same year, Portugal's Caetano Govern-
ment was overthrown. The new Portuguese government took immediate steps to dismantle the empire, and Indonesia
took immediate steps to facilitate East Timor's assimilation to Indonesia. n19 The inhabitants of the territory could not
have been less prepared for the storm rising on the horizon.
B. The Invasion of East Timor

Until the downfall of the Caetano Government, the colony of East Timor was fairly stable. n20 The Portuguese pres-
ence was minimal, and Portuguese authorities "ruled indirectly through local chiefs." n21 Except for the small Por-
tuguese military and civilian population, the inhabitants were a primarily a mixture of Timorese natives and Chinese
migrants, while the economy consisted primarily of coffee exports and subsistence agriculture. n22
[*275] Complying with the decolonization procedures promulgated by the United Nations, n23 Portugal's new
government offered East Timor three options: remaining a province of Portugal, achieving independence, or joining
Indonesia. Three factions immediately sprang up, each corresponding to one of these options. The Timor Democratic
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15 Emory Int'l L. Rev. 267, *

Union (UDT) favored continuing ties with Portugal. A group eventually known as Fretilin, suspected by Indonesia (and
others) of having communist support, advocated immediate independence. The third (and smallest) group, Apodeti, fa-
vored integration with Indonesia. n24
Portugal declared that a vote would be held. Civil war erupted, ending with Fretilin in control of most of the coun-
try. Fretilin took over the capital and declared independence. n25 Shortly thereafter, Indonesian troops "thinly dis-
guised" as members of the pro-Indonesia faction subdued the territory. Pro-Indonesian political parties created an un-
elected "Regional Popular Assembly' that passed a resolution in favor of joining Indonesia. n26 In retrospect, it is ap-
parent that Indonesia was successful in illegally annexing territory by force of arms. This is exactly the kind of state
behavior that international law since World War II has been crafted to prevent.
[*276]
II. Self-Determination and the Legal Status of East Timor
A. The Theory of Self-Determination

In theory, the process of self-determination, especially in the separation of a colony from its colonizer, has been assidu-
ously mapped out by the United Nations, the World Court, and the progression of positive international law since the
end of World War II. n27 The weakness of unwise application of the process has sometimes taken years or decades to
become apparent - continued instability in Africa is largely the result of past colonization. n28 Continued violence in
decolonized areas belies the apparent rightness of the idea of self-determination, and the virtues of the doctrine have not
been sufficient to create a stable world made up of countries governed by the will of their peoples.
1. The Wilsonian Ideal

The ideal of self-determination was elegantly summarized by Thomas M. Franck in the context of the Western Sahara
conflict n29 and of frustrated self-determination in decolonized Africa:
[*277]

This paramountcy of contemporary self-determination over historic claims and the alleviation of ancient wrongs is
based on two considerations. First, there is the assumption that any other approach would lead to endless conflicts, as
modern states found themselves under pressure to join a general reversionary march backward to a status quo ante of
uncertain age and validity. Second, it is widely observed that states or even colonies with established boundaries, how-
ever unjustly or serendipitously arrived at, soon develop a cohesive logic of their own that should not lightly be overri-
den [sic]. n30

This ideal of self-determination traces its origins as far back as World War I and the League of Nations, when the West-
ern powers began to question their pursuits and policies on a worldwide scale. n31
The concept of self-determination of peoples was not immediately accepted. Self-determination was listed in
Woodrow Wilson's "Fourteen Principles and Fourteen Points," n32 but it was not included in the Covenant of the
League of Nations, nor was it clearly or uniformly executed by the Treaty of Versailles. n33 During World War II, the
Atlantic Charter, n34 a precursor to the United Nations Charter, purported to espouse the principle of self-determination
for all peoples. However, the Free French government and the British government apparently considered this principle
to be applicable only to Nazi occupied Europe. These allied governments intended to reclaim their colonies after the
Axis powers were defeated. n35
[*278] Holland and Portugal also intended to reclaim their colonies from the retreating Japanese occupation. Re-
turning Dutch forces were repelled by nationalists in Indonesia, but Portugal retained its interest in East Timor. n36
Many third world nations, especially former colonies, became active in the United Nations General Assembly during the
Cold War and the concomitant suppression of the Security Council. n37 The General Assembly has been successful in
shaping international law to conform to the needs and aspirations of countries other than those with permanent seats in
the Security Council, and United Nations doctrine concerning self-determination is therefore largely devoted to the de-
colonization of third world areas by western powers. n38
2. United Nations Doctrines

Language in Article 1 of the Charter of the United Nations states the goal "to develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples ... ." n39 The basis, and bias, of in-
ternational law is, of course, the relationships of states. This led to the United Nations system for protection of un-pro-
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15 Emory Int'l L. Rev. 267, *

tected peoples. This system places care of these peoples in the hands of a sovereign state. Chapters XI and XII of the
United Nations Charter are devoted to Non-Self-Governing Territories and Trusteeships, respectively. n40 The essential-
ly paternalistic regimes of administration and trusteeship dictate that the United Nations or an administrative power is to
take responsibility for a dependent territory rather than a dependent people, and to protect the civil rights of the peoples
concerned until [*279] the territory shall fully develop self-government within its boundaries. n41 This language,
when construed with the language in Article 1, clarifies the nature of self-determination at the founding of the United
Nations as secondary to the rights of existing sovereign states and derived from clearly defined geographic territories.
The principle of self-determination within territories was eclipsed by the principle of self-determination of peoples
in the elements of self-determination described in the General Assembly's Declaration on Principles of International
Law Concerning Friendly Relations and Cooperation Among States ("Declaration on Principles"). n42 This principle
had evolved into a full right of peoples when the General Assembly issued its Resolutions concerning East Timor fol-
lowing the 1975 invasion, n43 and designated the inhabitants of the territory as a people with right to self-determina-
tion. Nonetheless, this right existed in direct conflict with the rights of Indonesia as a sovereign state.
"Peace and security" among states is a primary goal of the United Nations. n44 Accordingly, it is illegal for a state
to acquire territory by force, and other states may not recognize "a territorial acquisition resulting from the threat or use
of force." n45 However, it was contemplated at the time that territories already were somehow affiliated with [*280]
states, and the concern of the Declaration on Principles is aggression by a state against a fellow state. The language of
the Declaration on Principles that specifically articulates protection of a non-self-governing territory does not specifical-
ly articulate protection from another former colony. The enumerated goals of the Declaration on Principles are clear:
"(a) To promote friendly relations and co-operation among states; and (b) To bring a speedy end to colonialism, having
due regard to the freely expressed will of the peoples concerned." n46 This language illustrates an assumption that de-
colonized territories would magically become states, and that the inhabitants had "developed a cohesive logic of their
own" n47 within colonial boundaries. The more serious assumption is that colonial western powers are the only danger
to the peoples concerned.
The United Nations' Definition of Aggression n48 does acknowledge the right of certain peoples n49 to self-deter-
mination and the vulnerability of peoples seeking self-determination to external aggression. For example, it "reaffirms
the duty of States not to use armed force to deprive peoples of their right to self-determination." n50 Articles 5 and 7
also mention the unlawfulness of aggression against entities that are not necessarily states. n51 Nonetheless, the primary
force and clarity of the Definition are aimed at state against state aggression and set out the duty of states toward each
other, referring only in passing to unspecified peoples with the right to self-determination.
[*281] The United Nations doctrines of self-determination applicable to East Timor in 1975, as set out in these
documents, may be summarized as follows: existing sovereign nations have a duty not to be aggressive and a duty to
shepherd dependent territories to self-government, and peoples within those territories have a right to self-determina-
tion. These doctrines developed without any clear definition of who constituted a people with the right to self-determi-
nation, or even of what would constitute self-determination by such a people. The inhabitants of East Timor were a peo-
ple according to the United Nations resolutions, but they had no collective identity as such. Furthermore, the United
Nations was unsuccessful in specifying what other groups would be deemed a people, or which of those groups would
have the right to self-determination. It is unsurprising this right availed little to the inhabitants of East Timor, when the
United Nations could not define the right guaranteed them.
3. Defining "People" and "Self-Determination"

The phrase, "right of peoples to self-determination" is vulnerable to a simple, textual attack: "juridicially, the notion of
a legal right of self-determination is nonsense, for how can an as yet judicially non-existent entity be the possessor of a
legal right?" n52 There does not appear to be much agreement as to who or what constitutes a people. The various pos-
sible requirements are similar to certain requirements for statehood. n53 However, the era of the doctrine's development
and an examination of actual enforcement of the doctrine suggest that the only aspect of [*282] a people which has
gained general acceptance is that of a set of individuals within a delineated territory who are under the forced control of
an external entity, usually a colony.
Many states balk at including in the definition ethnic groups existing within the boundaries of sovereign states. As
discussed earlier, n54 the doctrine was originally intended to restabilize Europe after the two World Wars and the col-
lapse of large empires, and, later, to encourage western nations to decolonize the third world. There was, of course, no
intention to disrupt existing states. Besides the contention over the definition of peoples, there is likewise much debate
over the scope of self-determination, because the language of self-determination often connotes a requirement of demo-
cratic process. States without democratic governments understandably reject this implication, just as states with distinct
minorities reject the right of those minorities to self-determination. n55
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There are two dimensions to self-determination in international law: internal and external. n56 Internal self-deter-
mination "regulates relations between rulers and ruled within the community which inhabits a defined territory." n57
External self-determination "regulates relations between a self-defined community and the outside world." n58 In order
to fully self-determine, the inhabitants of decolonized areas must be a community internally "made up of individuals
freely associated on the basis of a social contract" n59 and, externally, be prepared to democratically [*283] determine
their own future in the international community. What if a decolonized population is not capable of either internal or
external self-determination? The United Nations regimes for administration of non-self-governing territories and
trusteeships took this sort of incapacity for granted. n60 However, the evolution of the doctrine of self-determination
from a principle for nations to adhere to when administering territories to a right held by particular "peoples" under-
mines the possibility of international protection of individuals in unprotected territories when both internal and external
self-determination are impossible.
In practice, self-determination operates either ethnically or territorially. n61 Ethnic self-determination is a function
of a cultural community of individuals who define themselves as members of an ethnic group. n62 This form of self-
determination is closer to the origins of the doctrine than territorial self-determination, because ethnic peoples were
supposed to the bases of new European states following the Treaty of Versailles. Today, this form of self-determination
is a source of tension in countries whose populations include sizable ethnic minorities; some groups claim that self-de-
termination mandates that ethnic peoples are entitled to self-governance in their own country. Sovereign states are op-
posed to the establishment of any legal justifications for secession or rebellion, and territorial self-determination was
conceived in United Nations doctrine to facilitate decolonization within colonial boundaries, that is to say territorially,
without threatening the stability of existing states.
The inhabitants of East Timor in 1975 were not capable of either internal or external self-determination. Internally,
the Portuguese authorities departed the territory, and the [*284] ensuing internecine strife destroyed whatever civic
structure remained. Externally, Indonesian forces quickly eradicated opposition and established itself as the international
voice of the East Timorese. The East Timorese were, furthermore, undefinable in either of the two recognized approach-
es to defining a "people" in the context of nationalism and self-determination: ethnic and territorial. n63 The inhabitants
of East Timor were culturally indistinct from the inhabitants of West Timor, and not a culture specific to the territorial
boundaries imposed by Dutch and Portuguese authorities. n64 The protective mechanisms of international law in this
case were undermined by the reality of the situation, and the right to self-determination did not aid the inhabitants of
East Timor in the legal debate over Indonesia's actions which followed the invasion.
B. The Legal Positions of the Parties Regarding East Timor
1. Portugal's Rights and Responsibilities Toward East Timor

Despite Portugal's early efforts to cut all ties to the growing disaster, n65 the decolonization of East Timor was arguably
left incomplete. In 1995, the International Court of Justice issued a decision in Portugal v. Australia in which it looked at
the situation in East Timor. n66 A compelling dissent to the court's decision laid out a legal basis for Portugal's continu-
ing role as Administrator of [*285] East Timor as a non-self-governing territory. n67 Immediately following the inva-
sion, the United Nations had named Portugal the Administrator of the territory, calling upon Portugal to stop the vio-
lence and to effect an act of free choice in their former colony. n68 As Administrator, Portugal had a right to eject In-
donesia from East Timor. Recognition of Portugal's interest in East Timor was an attempt to move protection of East
Timor from theory to action by a capable state, despite Portugal's physical abandonment of the colony and disclaimer of
responsibility. The United Nations followed the path of least resistance with this symbolic concession to the reality that,
however entitled East Timor was to self-determination, military force would be necessary to physically eject the Indone-
sian military forces subduing the territory. n69 Whatever qualities the inhabitants of East Timor had as a people with a
right to self-determination, a sovereign state with a claim to the territory was the only the only possible actor against
Indonesia.
Indonesia aggressively pursued its own position as a sovereign state with a claim to the territory. Apodeti, backed
by Indonesia, claimed that the abortive attempt by Fretilin to declare Independence from Portugal terminated Portugal's
interest in the territory. n70 This was contrary to United Nations declarations, but was a somewhat tenable legal argu-
ment. At the time of the invasion, Portugal failed [*286] to follow the guidelines for decolonization specified in the
Declaration on Principles. n71 The Portuguese authorities did not enforce a vote or plebiscite, nor did they negotiate a
transitional government to prepare for the creation of an independent state. Furthermore, Portugal withdrew its civil and
military presence in the territory when violence erupted, and passed an amendment to its constitution establishing that
East Timor was no longer a part of the country. n72 The United Nations' futile reliance upon Portugal in the face of de-
termined resistance opened the door to Indonesia's questionable legal claims serving as a basis for international accep-
tance of the annexation of East Timor.
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15 Emory Int'l L. Rev. 267, *

2. Indonesia's Claims to Legality, or, in the Alternative, to Fulfillment of the Mandate of Self-Determination

Indonesia put forward three possible legal bases for the annexation. First, Indonesia claimed to have acted in accor-
dance with the wishes of the East Timorese, as determined by "consultation" with certain East Timorese. n73 However,
according to findings by the General Assembly, there was never any "informed and democratic processes impartially
conducted and based on universal suffrage." n74 The "consultation" in East Timor bore a strong resemblance to the
"consultation" in West Irian, but in East Timor there was no uti possidetus argument for flexibility in the doctrine of
self-determination in favor of maintaining colonial boundaries. However, fulfillment of the mandate of self-determina-
tion was not the only possible argument for legality.
[*287] The second legal basis for Indonesian control was a purported humanitarian necessity for Indonesia to
bring an end to the civil war within the territory. This argument was very weak, but raised an interesting point. While
there is no established right for third parties to enter a sovereign state to tend to a humanitarian crisis, East Timor was
not a sovereign state. On the other hand, any possible legal, or moral, responsibility to guarantee an end to East Timor's
"internal strife" should have been superseded by the moral obligation to promote the realization of the right of self-de-
termination. In current international law, and more so twenty years ago, the doctrine of humanitarian intervention is
"generally considered ... to be now outdated." n75 It is unclear whether Indonesia, by attempting to justify the use of
military force in a humanitarian intervention which consisted primarily of killing or displacing the sufferers of internal
strife, expected to carry the day on this point. There were still other arguments.
The third, and strongest, claim Indonesia put forward n76 was in the nature of geographic and cultural integrity,
n77 although claims of historical dominion over the territory, apparently in time of legend, were unsubstantiated. De
facto recognition was further supported by a species of inchoate sovereignty akin to uti possidetus. n78 Indonesia was
the dominant entity in the immediate area, and already had legal control over West Timor - identical in geography and
population to East Timor. This argument was even more powerful in light of Indonesia's motivation, common to all
states, to secure and guarantee its own national security and economic independence. In this way, the legitimate con-
cerns of an independent sovereign nation came in direct conflict with the rights afforded to a dependent non-state.
[*288]
III.The Weaknesses of "Self-Determination"

The various causes and effects of the enormous casualties and international indifference in this case are susceptible to
identification and analysis. The most important conclusion to be drawn from the following practical aspects of the an-
nexation of East Timor is that no international legal regime, such as the right to self-determination, can be effective
when it is directly contrary to the dictates of international political regimes and the sovereignty of existing states.
A. In East Timor
1. Practical Considerations

While self-determination cannot be legitimately imposed by force, Indonesia's cultural ties and undeniable geographic
proximity to the territory of East Timor made integration the most sensible political outcome in the view of most inter-
ested observers. n79 No countries in the region were prepared to accept any shifts in the balance of power or a breaking
of economic ties with Indonesia over the fate of East Timor.
Effective control of the territory served as a basis for international acceptance of Indonesia's actions. n80 Indone-
sia's undeniable physical control of East Timor provided Western investors and ASEAN n81 countries with the neces-
sary face-saving excuse for continuing to deal financially with Indonesia. According to Robert Pringle, [*289] writing
four years after the annexation, "there has been acrimonious debate between human rights and regional bureaus in the
State Department over symbolic abstentions on international bank loans, but in no case thus far have human rights con-
siderations had any specific negative impact on multilateral aid disbursements." n82 There have been continued and
increasing economic deals with Indonesia. n83 Countries have been unwilling to deny Indonesia what they demand for
themselves, the "right" to take what they need if they can. Furthermore, economic interests have difficulty acknowledg-
ing any imperative not to deal with powers that be, as opposed to the powers that should be. The right to self-determina-
tion, as held by peoples, is purely juridical - it is not a fact reflected in the political and economic worlds.
Even after the World Court's ruling in Portugal v. Australia, n84 affirming the "right of self-determination" of the
East Timorese population, it is unclear what practical rights East Timor as an entity could have had among existing in-
terested nations. The native Timorese were culturally identical to native Timorese in West Timor, and the border be-
tween the two was the artificial result of colonization by two empires. Furthermore, centuries of colonization and in-
 Page
15 Emory Int'l L. Rev. 267, *

ternational trade had resulted in significant percentages of Europeans, Chinese, Southeast Asians, and mixed-race indi-
viduals. There was no fight for independence to forge the inhabitants of the territory into a coherent proto-state. The
United Nations considered the area non-self-governing, and, at the time of decolonization, both Indonesia and Portugal
considered the territory non-self-governable. n85 Essentially, friendly relations and cooperation among states advanced
by quietly allowing the [*290] annexation to take place. Colonialism in East Timor was brought to a speedy end, al-
though by the will of only some of the people concerned. Despite repeated affirmations of the existence of the right to
self-determination by both the United Nations and the International Court of Justice, it is a poor right that exists only
when economic interests benefit by enforcing it.
2. International Law Versus Practical Considerations

The legal issues related to Indonesia's rights and obligations were associated with concepts of sovereignty: recognition,
territorial integrity, and other such doctrines of ancient lineage. Despite the apparent illegality of the acquisition, the
aggressor state continued to be a sovereign entity: the illegality applied only to control of the acquired territory. East
Timorese rights could not be addressed without Indonesia. In Portugal v. Australia, n86 Portugal attempted to assert
territorial rights of the East Timorese, but Indonesia was ruled an indispensable party and the case was dismissed. If the
East Timorese qualified as a "people" under the terms of the Declaration on Principles, they were entitled to seek and
receive support in accordance with the purposes and principles of the Charter. If Portugal had lost any right to act for
East Timor, either by abandonment or by Fretilin's declaration of independence, the only state with any recognized in-
terest in the status of East Timor was Indonesia.
The international community lacked the means to positively recognize East Timor as a violated state with rights as
against the sovereign state of Indonesia. Disapprobation of Indonesia's actions was trumped by effective non-action by,
or on behalf of, East Timor. East Timor itself was incapable of self-determination. Not being a state, it did not have
standing to seek redress for harms [*291] before an international tribunal. Even if it did have standing, Indonesia could
refuse to submit to the court's jurisdiction. While the United Nations called on Indonesia to withdraw and called on Por-
tugal to take appropriate action, the United Nations never directly ordered or authorized action: there was no conflict
between nations.
The dangerous dissonance between self-determination and independent sovereignty, at least where the Western
colonial power had been removed, led to hedging the right of self-determination in favor of a sovereign state who had
an "interest" in what a people will determine for itself. n87
The result of aggression in cases like East Timor and Western Sahara n88 appeared to be assimilation of like by
like, in contrast to the domination of colony by colonizer. Situations like Western Sahara and East Timor, where the
colonial power was expelled and no new foreign power was [*292] introduced, unjustly triggered the international
community's anxiety over "peoples" within sovereign states and fear of attempts at secession or rebellion within estab-
lished borders. The hesitancy which international law shows to secession movements transfers strongly to those areas
where the only differentiation perceived from outside is former colony versus former colony instead of colonizer versus
colonized.
In an article written in anticipation of the World Court's disposition of Portugal v. Australia, n89 Gerry J. Simpson
summarized three possible legal conceptions of East Timor's right to self-determination: 1) East Timor remains a
colony, and possesses a right to self-determination that "parallels that of Nigeria, Algeria, and Mozambique during the
1950s and 1960s" n90; 2) East Timor is "no longer subject to "colonial rule' since Indonesia is not a colonial empire"
n91; and 3) East Timor "retains a legitimate right or claim to self-determination ... qualified by competing principles of
international law, notably Indonesia's claim to its territorial integrity." n92
In the view of other countries at the time of the invasion, the third position - that East Timor's rights were qualified
by Indonesia's - undoubtedly provided legal cover to the general urge not to actively interfere with Indonesia's acquisi-
tion. This view of East Timor's status is supported by recent events, particularly international compliance in dealing with
Indonesia as a governmental authority in a position to be consulted on East Timor's future. n93
The second view, however, most nearly accounts for the ongoing international acquiescence. All of the mechanisms
[*293] for self-determination developed by international law, particularly the United Nations, were to the noble and
speedy end of western colonial imperialism. In his article, Simpson describes the ramifications of this view:

In legal terms, this would constitute a denial that East Timor was subject to "alien subjugation, domination, and ex-
ploitation." Accordingly, East Timor would simply no longer possess a right to self-determination from colonial rule
 Page
15 Emory Int'l L. Rev. 267, *

under customary international law (lex lata), and that what in fact the East Timorese are claiming is a right to secede
from the Indonesian state. It is contended that this right is at best a right de lege ferenda and is unlikely to be accepted
by the I.C.J. given the absence of supporting state practice and the frequently explicit condemnation of secession within
the international community. n94

In this way, East Timor was caught in the horns of several contradictory doctrines of the law. Where the law could not
act, politics won.
Recent events have made clear that the East Timorese now exist as a "people," with the desire to govern themselves
and the ability to engage in relations with states. Identity, however, has come at a high cost. The principles promulgated
by the United Nations and the mechanisms of international law did not prevent the invasion and could not remedy the
wrongs done to the inhabitants of East Timor. United Nations resolutions and a World Court ruling confirmed the right
of the people to self-determination, but that should not be the end of serious inquiry into what went wrong in East Tim-
or. n95
[*294]
B. In General

Antonio Cassese, in his book Self Determination of Peoples, elegantly sums up what he refers to as the "real flaws" n96
in the current international law on the right of peoples to self-determination: 1) "current international law is blind to the
demands of ethnic groups, and national religious, cultural, or linguistic minorities;" n97 2) "it ultimately lacks universal-
ity;" 3) "the body of international rules is marred with imperfections;" n98 4) the rule of self-determination is "some-
times frustrated by the existence of [*295] other rules" such as uti possedis juris; n99 and 5) there is no "effective en-
forcement machinery or at least a significant body of remedial measures capable of implementing the right." n100 No
aspect of the failure of self-determination in East Timor (at least for the twenty-five years following the invasion), offers
much basis to challenge the existence of any of these flaws in the international regime for self-determination.
However, the first two criticisms, that international law does not respond to the demands of groups within territories
or within existing states and that it lacks universal application, bring up questions of their own. Should international law
provide, or provoke, an ever widening division among peoples? And should group affiliation be the basis for rights of
all individuals? The very scope of what constitutes a group, is itself the subject of almost endless dispute both as a
scholarly matter and as a question of interpretation of existing international treaty law. n101 The scope of rights to
which a group is entitled is in dispute itself, often through violent conflict. If the goal of international law is to promote
peace and stability, as well as friendly cooperation among nations, the method should match the goal. That is, the
method of achieving stability and peace should in fact move people and peoples toward peace and stability. In the next
section, this comment argues that, whatever the definitions of "group" or "people" are, neither should form the absolute
basis for self-determination or for international political and civil rights.
IV.Violence and "Self"

An autopsy of the practical considerations and the motives of actors in the international community should not put the
matter to rest. Nor should territories like East Timor and Western Sahara be viewed as exceptions to the otherwise ade-
quate progression of decolonization. International law should focus on situations where procedures fail, rather than my-
opically championing the Third World against the First. The circumstances surrounding the annexation of East Timor do
not merely explain why the illegal annexation took place. These [*296] circumstances illustrate the fatal weaknesses of
the principles involved, and demand a reexamination of the concept of self-determination.
The violence of the annexation was not the reason self-determination failed, but was the result of the inadequacy
and shortsightedness of self-determination doctrine. Inhabitants of a given territory must become a people in order to
have a self to determine. If there is to be a self, violence in some form is inevitable. Violence was inevitable between the
Dutch authorities and the disparate inhabitants of their Southeast Asian colonies. The fight for independence created a
people, the Indonesians. The inhabitants of what became Indonesia became a people through oppression and revolution,
and gave the East Timorese the opportunity to do the same. People may become a people through difference and other-
ness, through violence.
A.

"Self"
 Page
15 Emory Int'l L. Rev. 267, *

In his separate opinion to the Western Sahara Case, Judge Ammoun touched upon the crux of the matter when he wrote
"nothing could show more clearly the will for emancipation than the struggle undertaken in common, with the risks and
immense sacrifices it entails. That struggle is more decisive than a referendum, being absolutely sincere and authentic."
n102 He does not go far enough: he identified the will for emancipation. Will presupposes self, which presupposes a
people.
Much of the literature on secession and self-determination relies upon the existence of an "alternative source of
authority" n103 such as a front or an ousted [*297] government. This reliance echoes the continued primacy of sover-
eignty and statehood in international law. The procedures established by the United Nations for decolonized areas con-
templated infant-like states-to-be, with established boundaries and specific inhabitants, as well as the nurturing of the
infant state to full adulthood.
B.

"Other"

As Judge Ammoun pointed out, nothing shows the will for emancipation like a struggle. However, there is no struggle -
nor is there will or a people - until there is a force to resist. There is no self for a group of individuals until they achieve
an identity as a people. Identity is achieved for a people the same way it is achieved for an individual: through differen-
tiation, through separation by symbolic or actual force from an identified other. n104 The Dutch colonization subjugated
many different people, but was overthrown by a single people.
The colonial view, that the "uncivilized" peoples are naturally subject to the dominion and domination of "civi-
lized" nations obliterated distinctions among local peoples. In opposition to the Dutch, the native inhabitants became
simply "not Dutch." The Dutch were the catalyst for their own expulsion. At its inception, Indonesia's identity (and its
pre-nationhood "nationalism") existed only in relation to the presence of the foreign administrative apparatus. This iden-
tity, however, was in no way a conscious return to a previous state of existence for the individual residents of the is-
lands. The identity was wholly new, and its motivation was acquiring the key to "the governor-general's palace in
Batavia." n105 Indonesians, as a [*298] people with a state, achieved a reification of their difference the "other" Dutch
- and were reified by taking the place of the other.
Once the Dutch were expelled, Indonesia sought other means to maintain its unified identity. In some regions, the
domestic military enforced continued unification. Indonesian efforts to define itself also turned to two other forms of
separations: the appropriation of resources for financial independence and geographical delineation of the country as an
"archipelagic state." By including East Timor in its conception of self, Indonesia laid the seeds for an eventual East
Timorese people to expel them in turn.
C. Violence

The process of creation of Self through the existence of Other is not peculiar to Indonesia and East Timor. It is inherent
in the concepts of "peoples" and "self-determination." Furthermore, this differentiation is a violent activity, whether that
violence takes its form as intransigent resistance to assimilation by the community of the Other or as physical destruc-
tion of the individuals comprising the Other.
The violence of self-identification has been explored in psychological literature, and applies as well to communal
identity as it does to individual identity. In a modern interpretation of Freudian theory as applied to the group identity of
an ethnic people, "its formula is: "other than itself." n106 Viewed another way, a group's identification of itself as "Self"
is absolutely dependent upon the existence of "Not Self." The process of self-identification is an active process:
[*299]

Every culture must also be a culture of contempt; of contempt for the self, insofar as it does not live up to its own
ideal ... . To make its satisfaction "complete": no culture, no narcissism, no satisfaction, no identity, no ideal is complete,
fulfilled, or consistent if it does not compare itself with other cultures, identities, and ideals, if it does not set itself off
from them, set itself above them, or exclude them from itself. For the sake of its own identity and ideality, every culture
thus becomes, in a manner of speaking, a comparative science of culture and pursues a politics of segregation, of depre-
cation, contempt, and defamation. n107

As a process of separation and differentiation, self-identification injects violence into the process of both ethnic self-
identification and territorial self-identification. Ethnic self-identification forces individual members of a group to sup-
press their individual identity in conformance with the dominant group ethic, and often leads to exclusion or oppression
 Page
15 Emory Int'l L. Rev. 267, *

of non-member individuals. At the state level, "there is perhaps no greater tyranny than that demanded by the ethnic
state dominated by its quest for unity and conformity." n108 While the violence of ethnic self-identification arises
through the maintenance of the ethnic identity, the violence of territorial self-identification arises through the creation of
a "people" within the territory. Attempts to enforce a right to self-determination of peoples, especially in territories
where there is no "people" to possess the right, are bound by the nature of self-identification to entail some level of vio-
lence. Law cannot create a people, and cannot protect individuals in non- [*300] sovereign territories by deeming them
to possess an unenforceable right against sovereign states.
All is not lost, however. The ideal of self-determination is too powerful an idea to abandon, but it is hopefully not
too powerful to re-examine.
Conclusion

Because a people cannot be effectively defined without violence, because self-determination of a people almost invari-
ably conflicts with the rights and powers of sovereign states, because the highest goal of human endeavor is the reduc-
tion of human suffering, group rights must not gain precedence over the individual rights of any single person. Follow-
ing this precept, the European Union has created multi-national mechanisms to protect individual civil rights in all of its
states. An International Criminal Court for the prosecution of individuals responsible for violations of international law
may soon be established. The United Nations has defined the civil rights supposed to be respected in every person.
Essentially, individual rights have succeeded in curbing the absolute power of state sovereignty where self-determi-
nation of peoples has failed. If the ideal of self-determination, the vision of states at peace internally and externally, can
survive, it will be in the form of self-determination of individuals rather than peoples.
Self-determination of individuals is limited only by the rights of other individuals. Self-determination could be, in
itself, a regime of individual rights and responsibilities unencumbered by the regimes of state sovereignty and unhin-
dered by the violence of people-hood. Specific individual responsibility for harm to other individuals is within the abili-
ty of any legal system. If individual rights had been properly protected in East Timor, the international community could
not have ended discussion of [*301] the Timor Problem merely by asserting the right of the "people" of the territory to
self-determination and Indonesia could not have blocked an assessment of the responsibility of its officers for individual
wrongdoing.
East Timor has passed through the same process of reification that Indonesia endured. Self-determination was a
conceptual impossibility until the inhabitants of the territory were defined by force as victims of Indonesians and there-
fore as "not Indonesians," - until there was a government in exile, until there were books about the East Timorese.
Crimes cannot be un-committed, and the damages done by colonial empires cannot be un-done. International law must
continue to work toward the future, adapting to situations as they exist, but need not continue to accept the worst those
situations have to offer.

Legal Topics:

For related research and practice materials, see the following legal topics:
Estate, Gift & Trust LawTrustsAdministrationInternational LawSovereign States & IndividualsGeneral OverviewLabor
& Employment LawDiscriminationRacial DiscriminationEmployment PracticesCompensation

FOOTNOTES:

n1. For an account of Indonesia's perceptions of the annexation, see generally Hamish McDonald, Suharto's
Indonesia (1980).

n2. See G.A. Res. 3485, U.N. GAOR, 30th Sess., Supp. No. 34, at 118, U.N. Doc. A/10634 (1975). The
General Assembly denounced Indonesia's aggression and identified the inhabitants of the territory of East Timor
as a "people" with a right to self-determination. The General Assembly continued to denounce Indonesia on a
regular basis, ceasing by 1982. However, "even after 1982 East Timor [was] continuously included on the U.N.
list of non-self-governing territories, with the agreement of Portugal as the "Administrating Power.'" Antonio
Cassese, Self-Determination of Peoples: A Legal Reappraisal 223 (1995). See also Timor Resolutions, infra note
43.
 Page
15 Emory Int'l L. Rev. 267, *

n3. See generally U.N. Charter art. 1, para. 2; Declaration on the Granting of Independence to Colonial
Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66-67, U.N. Doc. A/4684
(1966) [hereinafter Independence Declaration].

n4. U.N. Charter art. 1, para. 2.

n5. Some scholars and activists advocate a right of an ethnically defined people to self-determination even
within the borders of a sovereign state, but this view has not gained credence internationally. See Cassese, supra
note 2, at 337-65.

n6. Robert Cribb & Colin Brown, Modern Indonesia: A History Since 1945 1 (1995). Groups in Indonesia
range "from fiercely Muslim Acehnese on the northern tip of Sumatra and the Catholic communities of Flores
and Timor to the Hindu Balinese and the animist tribes of the interior of Kalimantan (Borneo) and New Guinea,
as well as more recent immigrant communities such as Chinese in western Kalimantan and Europeans in the
cities of Java." Id.

n7. Id. at 6. Dutch colonization was a piecemeal affair from island to island, but "by the early twentieth cen-
tury, full Dutch sovereignty had been established over a vast sweep of islands from Sumatra to New Guinea... ."
Id. at 5.

n8. Cribb & Brown, supra note 6, at 7.

n9. Id.at 7. The legal system in the colony was "a form of legal apartheid." Initially based on religious divi-
sions, the legal system eventually became three legal systems; Europeans, non-native non-Europeans, and na-
tives each had different rights and separate forms of justice. Id. at 6.

n10. Id. at 7.

n11. Id.

n12. Achmed Sukarno, together with Muhammad Hatta, declared Indonesian independence on August 17,
1945. Japan had surrendered, but Allied forces had not yet arrived to enforce an ante-bellum status quo. Id. at 16.

n13. Id. at 17 ("Certainly tens of thousands, possibly over a hundred thousand Indonesians, died in defend-
ing the new Republic against the returning colonial power.").

n14. West Irian was originally the Dutch controlled portion of the island of Papua New Guinea, and is often
called "West New Guinea." The rest of the island was a British colony. After Indonesian independence, Indone-
sian leaders took extensive diplomatic and military action to ensure the colony's inclusion as a province of the
new Indonesia. See Harold Crouch, The Army and Politics in Indonesia 44-51 (rev. ed. 1988). For Suharto's role
in the West Irian actions, see McDonald, supra note 1, at 64-67. For an account of the annexation of West Irian
as it occured at the international level, see Cassese, supra note 2, at 82-86 (describing West Irian's "act of free
choice" as "amounting to a substantial denial of self-determination").

n15. "In the decolonization of West Irian, the United Nations, in a controversial, deeply divisive vote fore-
shadowing the [Western] Sahara debates, voted to accept as valid the Indonesian-organized "act of free choice'
which involved not a secret ballot but only "collective consultations' held while the Indonesian Administration
"exercised at all times tight political control over the population.'" Thomas M. Franck, The Stealing of the Sa-
hara, 70 Am. J. Int'l L. 694, 700-01 (1976) (quoting Report of Secretary-General regarding act of self-determina-
tion in West Irian, U.N. GAOR, 24th Sess., Annexes, Agenda Item No. 98, at 2, U.N. Doc. A/7723 (1969)). The
 Page
15 Emory Int'l L. Rev. 267, *

vote that West Irian representative assemblies were consulted on was a "yes or no" decision: to stay with Indone-
sia or to sever ties with Indonesia. See Cassese, supra note 2, at 84.

n16. Id.

n17. This self-identification as an "archipelagic state" is an element of Indonesia's profitable cooperation

with the Association of Southeast Asian Nations (ASEAN), and has been instrumental in maintaining an inde-
pendent international identity while accepting help from wealthy foreign suitors. See Robert Pringle, Indonesia
and the Philippines (1980); see also Sevinc Carlson, Indonesia's Oil (1977). ASEAN includes Indonesia, Ma-
laysia, Thailand, Singapore, and the Philippines.

n18. McDonald, supra note 1, at 191.

n19. Id. at 192.

n20. The only major modern uprising occurred from 1910 through 1912, under a local ruler. The uprising
was crushed. During World War II, the Japanese occupation resulted in hundreds of thousands of deaths due to
suppression and food shortages. Portugal returned after the war, and the situation remained the same until 1974.
Id. at 190-91.

n21. Id. at 192. These local rulers were apparently well rewarded by the Portuguese, and had titles such as
"Son of God." Any disturbance in the territory was swiftly punished by Portuguese military forces. Id.

n22. Id. at 192. It should be kept in mind that the "stability" of the colony is judged from the point of view
of the colonizer. Despite the "minimal" presence of the Portuguese authorities, the authorities focussed only
upon advantages for Portugal and not upon the interests of the inhabitants of the territory. Id.

n23. Independence Declaration, supra note 3.

n24. See McDonald, supra note 1, at 189-215. While Apodeti had little popular support in East Timor, many
Indonesians believed annexation of East Timor would be good for everyone involved: "Most Indonesians saw
[the Timor Affair] as the painful redrawing of artificial colonial boundaries, the rescue of an endemically poor
region from repressive white rulers, and the pre-emption of hostile foreign involvement." Id. at 189.

n25. Fretilin's declaration of the "Democratic Republic of East Timor" was officially recognized by
Mozambique, another Portuguese colony, on December 1, 1974, less than a week before the full scale invasion.
Int'l Comm'n of Jurists & Netherlands Inst. of Hum. Rts., Indonesia and the Rule of Law: Twenty Years of "New
Order' Government (Hans Thoolen ed. 1987) at 18 [hereinafter Thoolen].

n26. Cassese, supra note 2, at 224.

n27. See generally, Ediberto Roman, Reconstructing Self-Determination: The Role of Critical Theory in the
Positivist International Law Paradigm, 53 U. Miami L. Rev. 943, 945 (1999).

n28. Robert H. Jackson, Quasi-states: Sovereignty, International Relations, and the Third World 149-51
(1990).

n29. Franck, supra note 15. Western Sahara is a former Spanish colony populated mainly by nomadic
herdsmen and possessed of enormous mineral resources. Spain undertook decolonization of the territory, offer-
ing a choice of independence, continued affiliation with Spain, or assimilation to either Morocco or Mauritania.
 Page
15 Emory Int'l L. Rev. 267, *

Both Morocco and Mauritania laid claims of sovereignty to the territory. Private meetings among the three par-
ties were followed by the armed division of the territory between Morocco and Mauritania. Spain apparently
profited by the transaction. Id. It took over fifteen years of fighting, in and out of court, for efforts to obtain a
referendum in the territory. Cassese, supra note 2, at 214-17.

n30. Id. at 698.

n31. See Roman, supra note 27.

n32. Woodrow Wilson, Speech of 11 February 1918, quoted in Lawrence T. Farley, Plebiscites and Sover-
eignty: The Crisis of Political Illegitimacy 5 (1986).

n33. Kamal S. Shehadi, Ethnic Self-Determination and the Break-up of States, The Adelphi Papers, No.
283, Dec. 1993, at 16.

n34. Id. See generally Roman, supra note 27.

n35. See Shehadi, supra note 33, at 18.

n36. See supra note 20.

n37. See Ronald Steel, Temptations of a Superpower 86 (1995).

n38. See Roman, supra note 27.

n39. U.N. Charter art. 1, para. 4 (emphasis added).

n40. U.N. Charter arts. 73-85.

n41. U.N. Charter arts. 73-85. On the paternalistic nature of Trusteeship regimes, see Jackson, supra note
28, at 71-74.

n42. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among
States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV) U.N. GAOR, 25th Sess.,
Supp. No. 28, U.N. Doc. A/8028 (1970) [hereinafter Declaration on Principles].

n43. See G.A. Res. 3485, U.N. GAOR, 30th Sess., Supp. No. 34, at 118, U.N. Doc. A/10634 (1975); G.A.
Res. 34/40, U.N. GAOR, 34th Sess., Supp. No. 46, at 206, U.N. Doc. A/34/46 (1979); and G.A. Res 37/30, U.N.
GAOR, 37th Sess., Supp. No. 51, at 227, U.N. Doc. A/37/51 (1982) [Timor Resolutions]. See also S.C. Res.
384, U.N. SCOR, 30th Sess., 1869th mtg., at 10, U.N. Doc. S/INF/31 (1975); and S.C. Res. 389, U.N. SCOR,
31st Sess., 1914th mtg., at 18, U.N. Doc. S/INF/32 (1976) (United States abstaining).

n44. U.N. Charter art. 1.

n45. Declaration on Principles, supra note 42, at 121.

n46. Id.
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15 Emory Int'l L. Rev. 267, *

n47. Franck, supra note 15. On juridical statehood, see generally Jackson, supra note 28.

n48. G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31 at 142, U.N. Doc. A/9631 (1974), adopted
without a vote Dec. 14, 1974.

n49. The Definition of Agression recognizes the right of self-determination of peoples "as derived from the
Charter" and "referred to in the [Declaration on Principles]"; i.e., peoples not within the boundaries of an exist-
ing sovereign state. Id.

n50. See Declaration on Principles, supra note 42.

n51. Id. at arts. 5, 7.

n52. Sir Gerald Fitzmaurice, The Future of Public International Law, in Livre du Centenaire, Ann. Inst. de
Droit Int'l 1973, at 233 n.85, quoted in Louis Henkin et al., International Law 303 (3d ed. 1993).

n53. The qualities of statehood are generally agreed upon: a defined territory, a permanent population, self-
government, and the capacity to engage in formal relations with other states. Restatement (Third) of In-
ternational Law 201.

n54. See supra notes 29-35 and accompanying text.

n55. See, e.g., Thomas D. Grant, A Panel of Experts for Chechnya: Purposes and Prospects in Light of In-
ternational Law, 40 Va. J. Int'l L. 115 (1999).

n56. See Shehadi, supra note 33, at 4.

n57. Id. (citations omitted).

n58. Id. (citations omitted). "Civic" as opposed to "sovereign" is another possible reading of the "internal"
versus "external" distinction, although Shehadi does not consider sovereignty the only possible route to external
self-determination. Id. Id. (citations omitted).

n59. See Shehadi, supra note 33, at 5 (criticizing territorial self-determination).

n60. See supra notes 39-43 and accompanying text.

n61. See Shehadi, supra note 33, at 4-5.

n62. Id.

n63. Id. at 4-5. Shehadi explores aspects of nationalism. The two approaches he describes echo the tension
underlying United Nations doctrines concerning self-determination, and international concern over the secession
of ethnic minorities from existing sovereign states.

n64. Cribb & Brown, supra note 6, at 5.

n65. See Timor Resolutions, supra note 483.

 Page
15 Emory Int'l L. Rev. 267, *

n66. Concerning East Timor (Port. V. Austl.), 1995 I.C.J. 90 (June 30, 1995). See infra text accompanying
note 85.

n67. Port. v. Austl., 1995 I.C.J. 90.

n68. See Timor Resolutions, supra note 483.

n69. The reasons for choosing this path can be simplified: 1) only the Security Council can mobilize in-
ternational force; 2) U.S. and USSR veto power could paralyze the Security Council during the Cold War; and 3)
U.N. troops have a much more difficult time getting out of territories than getting into them. After the 1975 in-
vasion, General Assembly Resolutions expressly recognized the status of Portugal, the "sacred trust" of United
Nations members administrating non-self-governing territories. Most importantly, the United Nations resolution
immediately following the invasion, which called upon Portugal, as "administrator," 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." Por-
tugal did not do so. See id., and Cassese, supra note 2.

n70. See Thoolen, supra note 25.

n71. See Declaration on Principles, supra note 42.

n72. See Cribb & Brown, supra note 6.

n73. See Timor Resolutions, supra note 43.

n74. See Declaration on Principles, supra note 42.

n75. See Thoolen, supra note 25, at 21.

n76. See Declaration on Principles, supra note 42.

n77. Id.

n78. See supra notes 14-19 and accompanying text.

n79. See McDonald, supra note 1.

n80. See Carlson, supra note 17; see also Natalie S. Klein, Multilateral Disputes and the Doctrine of Neces-
sary Parties in the East Timor Case, 21 Yale J. Int'l L. 305 (1996).

n81. See Carlson, supra note 17.

n82. See Robert Pringle, supra note 17, at 116.

n83. Brad R. Roth, Governmental Illegitimacy Revisited: "Pro-Democratic" Armed Intervention in the Post-
Bipolar World, 3 Transnat'l L. & Contemp. Prob. 481 (1993).
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n84. Port. v. Austl., 1995 I.C.J. 90.

n85. See McDonald, supra note 1.

n86. Port. v. Austl., 1995 I.C.J. 90.

n87. In 1998, the new president of Indonesia, President B.J. Habibie, publicly opened the possibility for
East Timor to receive "special autonomy." This status would grant the territory some level of autonomy similar
to that granted to the provinces of Aceh (Sumatra) and Yogyakarta (Java) - provinces with special status relating
primarily to Islamic religious rights. At the time, the United Nations had been brokering talks between Portugal
and Indonesia (along with some East Timorese groups) as "parties to the dispute." Jay Solomon, Indonesia Eases
Stance on East Timor, Wall St. J., Jun. 10, 1998, at A15. In 1999, preparations for an actual vote coalesced after
Indonesia and Portugal agreed to a direct ballot. Nonetheless, Indonesia's military and the Indonesia-supported
militia were expected to themselves provide security for the vote. An International Herald Tribune article quoted
U.N. Secretary-General Kofi Annan as saying that it would be unrealistic to expect that the Indonesian Army or
any militia groups could be disarmed before the vote. Michael Richardson, Fear Grows in East Timor as Area
Weighs Its Future, Int'l Herald Trib., Mar. 16, 1999, at 4. Even after more than twenty years of international con-
demnation of both Indonesia and Portugal for their actions, or inaction, in East Timor, these two countries were
expected upon to negotiate between themselves what provisions were to be made for the people of East Timor,
and were relied upon to do so.

n88. See generally Franck, supra note 15. The similarities between Western Sahara and East Timor are strik-
ing. The dispute over Western Sahara was "resolved" primarily through the use of force, facilitated by a three-
part agreement among Spain, Morocco, and Mauritania. These parties were internationally recognized as having
an interest in territory, especially in light of the nomadic, non-unified nature of the inhabitants. Id. See also
Cassese, supra note 2, at 214-18.

n89. Gerry J. Simpson, Judging the East Timor Dispute: Self-Determination at the International Court of
Justice, 17 Hastings Int'l & Comp. L. Rev. 323 (1994).

n90. Id. at 336.

n91. Id.

n92. Id.

n93. See Janet Wilson, Agreement to Allow for Vote on East Timor, L.A. Times, Apr. 24, 1999, at A3.

n94. Simpson, supra note 89, at 336. (citations omitted).

n95. On August 30, 1999, eighty percent of East Timorese voted in favor of independence from Indonesia.
This vote "triggered a wave of killing, looting, arson and destruction by the [pro-Indonesian] militias that caused
international outrage and ultimately forced Jakarta [the capital] to allow a U.N.-mandated multinational force let
by Australia into the territory to restore order." Michael Richardson, U.N. Role in Timor Is Put at Three Years,
Int'l Herald Trib., Oct. 21, 1999, at 6 (emphasis added). This is one more way Indonesia's illegal annexation of
East Timor resulted in international recognition of Indonesia having sovereign rights over the territory.

n96. "Real flaws" are contrasted with "alleged flaws." The alleged flaws of the present legal regulation of
self-determination are that
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15 Emory Int'l L. Rev. 267, *

(i) it fails to pay regard to the basic aspirations of nations and minorities, or that (ii) it is strongly one sided and
biased, for it only takes account of the political and ideological demands of some groups of States (those with
anti-colonial leanings) and totally neglects the requirements of "representative democracy", or that (iii) it is
made up of a set of rules that are deliberately ambiguous and imprecise and, in particular, do not define their
beneficiaries ... nor provide guidelines as to the modes of implementing self-determination.

Cassese, supra note 2, at 327. Cassese goes on to refute "flaws" (ii) and (iii). Id.

n97. Id. at 328. One major concern over this aspect of self determination is that minorities within sovereign
nations are protected only against "genocide" as defined by international law. Id. at 329. See supra notes 52-55
and accompanying text. For an examination of current international law concerning genocide, see generally,
William A. Schabas, Genocide in International Law (2000).

n98. Cassese, supra note 2, at 330-31.

n99. Id. at 332.

n100. Id.

n101. See generally Shabas, supra note 97, at 102-50.

n102. Western Sahara, 1975 I.C.J. 12, 33 (Oct. 16)

n103. Roth, supra note 83. "Liberation movements represent dependent peoples by virtue of their ability to
mobilize resistance, and thereby to establish themselves (by whatever means) as the alternative source of author-
ity." Id. at 28.

n104. On the United States's historic self identification against the U.S.S.R., and the troubling effects on the
United States of the fall of the Soviet regime, see generally Steel, supra note 37.

n105. Cribb & Brown, supra note 6, at 7.

n106. Werner Hamacher, One 2 Many Multiculturalisms, in Violence, Identity, and Self-Determination 292
(Hent de Vries & Samuel Weber eds., 1997).

n107. Hamacher, supra note 106, at 291, discussing Freud.

n108. Steel, supra note 37, at 100. Another aspect of the danger of ethnic self identification that is not dis-
cussed here is the incentive to individual members of the ethnic community to benefit materially through preda-
tion upon the "other." See also Robert Cullen, The Human Rights Quandary, Foreign Affairs, Winter 1992-93, at
79-88 (ideology of ethnic nationalism elevates group rights over individual rights; i.e. justifies violation of indi-
vidual rights in cause of group).
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