Author:	Bingbin Lu LLB (Fudan) Law Librarian, Transnational Law & Business University, Seoul, Korea
Subjects:	East Timor (Other articles) East Timor Annexation To Indonesia International law (Other articles) Self determination, National (Other articles)
Issue:	Volume 11, Number 2 (June 2004)
Category:	Comment

Contents

• Introduction
• The Principle of Self-Determination
• The Status of East Timor under International Law
  • An Indonesian Province?
  • A Non-Self-Governing Territory?
  • East Timor's Territorial Sovereignty
• Conclusion: Legal and Political Implications of this Case
• Notes

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 Gusmão winner of first-ever presidential election. On 20 May 2002, UN hands over authority to democratically elected government; President Gusmão 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]