East Timor

East Timor is a State located in south-eastern Asia, consisting in the eastern half of the Timor island, Atauro and Jaco. The rest of the island is Indondesian territory. Timor was colonized by both Netherlands and Portugal during the 16th century and after long, bloody disputes, a definitive border was established by the Hague Treaty in 1916, confirming Portuguese control over the eastern part of the island. After a brief window of Japanese dominance during World War II, East Timor was reinstated as a Portuguese colony after the war. 1974 saw the Carnation Revolution in Portugal and the subsequent abandon of the colonies, followed, in Timor, by civil war between the supporters of the two biggest political parties. On November 28th 1975 East Timor declared its independence, act on which Indonesian government, scared to have a communist state in the archipelago, reacted with a full-scale military invasion and declared East Timor its 27th province. The long occupation that lasted for more than twenty years was bathed in blood and violence, with over one hundred thousand deaths among the civilians. In 1999, with UN intervention, an agreement between Portugal and Indonesia allowed for UNsupervised popular referendum, resulting in a clear vote for independence (over 75%). The vote was met with a campaign of violence by the Timorese pro-integration militia that forced UN to intervene with an international peacekeeping force led by Australians, to ensure that order was restored in the country, thus taking effectively over the administration of East Timor until 2002, when its independence was officially formalized and the state recognised by UN. Nowadays the country is a lower-middle-income economy, listed 120th by the HDI, still suffering for and trying to recover from the long struggle for its independence, that dramatically damaged the infrastructures and population. It is, along with Philippines, one of the two predominantly Catholic country in Asia.

Case Concerning East Timor

In 1989 Australia and Indonesia signed the Timor Gap Treaty, to rule on their maritime boundaries, an agreement that created a Zone of Cooperation (ZOC) within which Australia and Indonesia would share oil development and profits. This zone was based on the AustraliaIndonesia boundary drawn in 1972 and the treaty heavily favoured Australia, entitling on resources that should be in Eastern Timorese territory. Portugal, at that time supposedly the legal administrator of East Timor, was not included in the negotiation, strongly protested and on 22 February 1991 instituted proceedings against Australia, taking the case to the International Court of Justice.

According to the Application, Australia had failed to observe [...] the obligation to respect the duties and powers of [Portugal as] the administrating power of East Timor [...] and the right of the people of East Timor to self-determination. 1 Australia objected that there is no real dispute between the Parties, as the true respondent would be Indonesia, not present in the case. Portugal Application would therefore require the Court to determine the rights and obligation of Indonesia which, under Article 36, paragraph 2 of the Statute, would not enable the court to act. To strengthen its claim, Australia referred to the Monetary Gold Removed from Rome case of 1943, in which similar circumstances had caused the Court to claim it had no jurisdiction over the matter (France, UK and USA asked the Court to rule on the restitution of nazi gold seized from Rome and claimed by both Albania and Italy as their own. After deciding that the matter was a dispute between Italy and Albania and that the latter did not deferred to the ICJ, the Court declared the impossibility to act).

The Judgement
As much as the Court recognised Portugal claim that the right of people of self-determination has an erga omnes character, it noted that it must be separated from the rule of consent in jurisdiction. The Court decided that Australia conduit could not be examined without ruling whether or not Indonesia could lawfully have signed the Treaty of 1989, thus determining whether its position in East Timor could have conferred it the power to act on its behalf regarding its resources. All of this could not have been determined in the absence of Indonesia. After five years, on 30 June 1995, the court, by 14 votes to 2, emitted its judgement refusing 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 therefore 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. However, even if in order to respect the formal laws of international jurisdiction the Court firmly refused to emit a judgment on the matter, it did note, through the separate opinion of its judges, that it supports the fact that East Timor remains considered as a non-self-governing territory.

An analysis of the case

To analyse this rather complex case, beyond the formality that brought to its outcome, and to understand the reasoning that lead to the Courts decision, it is crucial to focus on the concept of self-determination and on the status of East Timor in international law in the light of this principle and the consequences coming from its application.
1

East Timor (Port. v. Austl.), 1995 I.C.J.(holding that 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)

According 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. Although a fundamental principle of modern international politics, there is debate among the scholars on the difference between external and internal selfdetermination. The first one gives people subject to colonization or foreign occupation the right to govern their own affairs free from outside interference 2, whilst second gives minorities and indigenous people control over their own destinies3. East Timor specific case is commonly considered belonging to the external category. Since, according to the Charter, external self-determination is the right of individuals to be independent and free from outside interference, as such a military occupation as the one Indonesia had put into action in East Timor territory in 1975 (from which largely derived the influence and the claims the first had on the latter) could have been considered as an act contrary to the UN Charter. Therefore a question arises on whether East Timor, at the time of the events that brought to the case analyzed, in the light of the self-determination principle, should have been considered as an Indonesia province (like claimed after the military invasion) or as a Non-Self-Governing Territory. On the one hand, If East Timor was to be rightfully considered a province, as claimed by Indonesia, the matter would not have been of International concern and thus well outside UN jurisdiction. On the other hand, if East Timor had been a Non-Self-Governing-Territory, and its annexation to Indonesia illegal, than the situation would have been of international relevance and the UN would have been forced to intervene. Unfortunately, East Timor position under international law at the time of the event was ambiguous, and the Court decided not to rule on it. An interesting analysis on the arguments that brought to this decision can be found in the dissenting opinion of Judge Weeramantry, one of the two opposing vote to the Court absention. While agreeing with the rest of his colleagues that there was no dispute in reality between Australia and Portugal, in Weeramantrys opinion4 the court did not lack the jurisdiction to decide against Australia, as the rights of self-determination and permanent sovereignty over natural

Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights 49 (1990).
3

Edward A. Laing, The Norm of Self-Determination, 1941-1991, 22 Cal. W. Int'l L.J. 209, 248 (1992).

East Timor (Port. v. Austl.), 1995 I.C.J.(holding that 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), at 139 Weeramantry, J., dissenting.

resources are prerogatives of all states (in this case East Timor) and they generate a duty upon all the States to respect those rights. To prove the point of the impossibility of considering East Timor as a legitimate province of Indonesia one could follow Bingbin Lu counter argument5, that put a stress on the absence of one of the criteria of Resolution 1541, which established the legitimate modes of exercising the right of self-determination and according to which "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." 6 Moreover, Portugal continual protests (as the rightful administrating power of East Timor) after Indonesia military occupation, precluded the possibility to consolidate its power over the country, thus invalidating another chance to consider East Timor as a province by virtue of effective occupation. Following this reasoning, it is legitimate to wonder how East Timor could have been therefore considered, after excluding the legitimacy of Indonesia to claim it as its province. The only apparent answer to this question would have qualified East Timor as a non-self-governing territory since, as Judge Weeramantry noted in his statement7 even the General Assembly and Security Council resolutions had recognized it as such. In his opinion, the Judge concluded East Timor is "a territory unquestionably entitled to self-determination". 8 It seems clear that the ICJ, refusing to rule on the Case concerning East Timor, did not indicate a clear, defined path where to find a permanent solution to the delicate situation. In its Judgement, questioning the right of Portugal to act as a legitimate administrative authority, whilst at the same time deciding not to rule on Indonesian position, choosing rather to adopt a formalistic approach to find a somewhat neutral solution, the Court implicitily depicted one of three possible interpretations on East Timor actual status. The first scenario saw Portugal as a limited administering authority over the non-self-governing territory of East Timor. The second one had East Timor still as a non-self-governing territory but under the influence and administration of Indonesia. And the last one considered East Timor as annexed to Indonesia.

Bingbin Lu LLB (Fudan), East Timor Annexation To Indonesia, Volume 11, Number 2 (June 2004).

Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, G.A. Res.
7 8

Weeramantry, J., dissenting, Id. Weeramantry, J., dissenting, Id.

Whereas the first interpretation would have admitted Portugal authority despite a decades long absence, both of the latter solutions would not only have recognised a certain level of legal power and influence to a state (Indonesia) that forcibly occupied another (East Timor), but would also have taken a slight diverging route from UN official position that always rejected Indonesia illegal annexation and military occupation of Eastern Timorese territory.

Consequences and implications

The implications of the decision of the International Court of Justice had an impact both in a case-specific setting and a deeper echo on the international scenario. In regards of East Timor situation the Court, choose to take a neutral approach and rather avoiding Portugal claims than taking a firm position toward Indonesia military occupation and its outcomes, invoking the indispensable presence of a third party. This on the one hand did not help East Timor position and weight in the international community rendering it little more than a territory which resources and administration are to be disputed by neighbors and past colonizers, and on the other did not create an example to be followed for future similar cases implying violations of territorial rights. From a wider perspective the Court lost a precious occasion to rule on, and thus giving the international community a guide line, a subject as delicate as the right of self-determination. In fact, even though this principle has long since been part of the international politic doctrine and law, it has been always subject to interpretations and lacked the strength to set a precise course of action. The Court could have used the Case concerning East Timor to give this principle 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. 9

Bingbin Lu, Id.