CASE CONCERNING EAST TIMOR
.............(PORTUGAL v. AUSTRALIA)
INTERNATIONAL COURT OF JUSTICE
General List No. 84, 1995 I.C.J. 90 (1995)
...........34 Int'l Legal Mat'ls 1581 (1995)
..........Permission to reprint granted by ILM
.......© American Society of International Law
Timor is located in the Indonesian archipelago.
British Capt. Bligh landed there in 1789, after being cast adrift
at sea for days, in the wake the mutiny on the H.M.S. Bounty--the
subject of some 2,000 books and articles and five motion pictures.
In 1975, Indonesia's prior President sent military forces into
East Timor, to affect Indonesia's claim of ownership. Thousands
were then killed by military forces, after Portugal ended five
centuries of colonial rule. Most residents are Catholic, while
Indonesia is predominantly Muslim.
.....The two following opinions--the majority of the Court, and the concurring opinion of Judge Oda-- contrast the right of self-determination (UN-sponsored) and the right of sovereign control (claimed by both Portugal and Indonesia) over East Timor. Although Portugal lost actual control of East Timor in the aftermath of the Indonesian conquest, it hoped that the International Court of Justice (ICJ) might restore Portugal's claim to sovereigntyunder the guise of various UN resolutions deploring Indonesia's denial of the right to self-determination.
.....An essential issue was whether Portugal retained the power to bring this case on behalf of the people of East Timor. Portugal's decision to sue Australia placed the latter nation, and the Court, in an awkward position. Neither Australia nor the UN approved of the earlier Indonesian takeover. Australia needed to more clearly resolve its rights in the continental shelf area shared by East Tmor and Australia via its post-takeover treaty with Indonesia.
.....The UN's judicial arm, the ICJ, is supposed to uphold International Law, which includes the right of self-determination of peoples to choose their own form of government. Yet the de facto control of East Timor by Indonesia, the resulting denial of self-determination to its independence-minded inhabitants, and the absence of Indonesia from the court proceedings, and the validity of Indonesia's military conquest all militated against the Court's being able to effectively resolve this controversy.
.....Italics within the following edited opinion have been added by the textbook's author. The numbered paragraphs are those of the ICJ--the typical style employed by international courts.]
12. In resolution 1542(XV) of 15 December 1960 the United Nations General Assembly recalled "differences of views ... concerning the status of certain territories under the administrations of Portugal and Spain and described by these two States as 'overseas provinces' of the metropolitan State concerned"; and it also stated that it considered that the territories under the administration of Portugal, which were listed therein (including "Timor and dependencies") were non-self-governing territories within the meaning of Chapter XI of the Charter. Portugal accepted this position in 1974.
13. Following internal disturbances in East Timor, on 27 August 1975 the Portuguese civil and military authorities withdrew from the mainland of East Timor to the [nearby] island of Atauro. On 7 December 1975 the armed forces of Indonesia intervened in East Timor. On 8 December 1975 the Portuguese authorities departed from the island of Atauro, and thus left East Timor altogether. Since their departure, Indonesia has occupied the Territory, and the Parties acknowledge that the Territory has remained under the effective control of that State. Asserting that on 31 May 1976 the people of East Timor had requested Indonesia "to accept East Timor as an integral part of the Republic of Indonesia", on 17 July 1976 Indonesia enacted a law incorporating the Territory as part of its national territory.
14. Following the intervention of the armed forces of Indonesia in the Territory and the withdrawal of the Portuguese authorities, the question of East Timor became the subject of two resolutions of the Security Council and of eight resolutions of the General Assembly [from 1975 through 1982]....
15. Security Council resolution
384 (1975) of 22 December 1975 called upon "all States to
respect the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination";
called upon "the Government of Indonesia to withdraw without
delay all its forces from the Territory"; and further called
upon "the Government of Portugal as administering Power
to co-operate fully with the United Nations so as to enable the
people of East Timor to exercise freely their right to self-determination".
Security Council resolution 389 (1976) of 22 April 1976 adopted
the same terms with regard to the right of the people of East
Timor to self-determination; called upon "the Government
of Indonesia to withdraw without further delay all its forces
from the Territory"; and further called upon "all States
and other parties concerned to co-operate fully with the United
Nations to achieve a peaceful solution to the existing situation
17. The incorporation of East Timor as part of Indonesia was recognized by Australia de facto on 20 January 1978. On that date the Australian Minister for Foreign Affairs stated: "The Government has made clear publicly its opposition to the Indonesian intervention and has made this known to the Indonesian Government." He added: "[Indonesia's] control is effective and covers all major administrative centres of the territory." And further:
.....On 23 February 1978 the
[Australian] Minister said: "we recognize the fact that
East Timor is part of Indonesia, but not the means by which this
was brought about".
18. Prior to this, Australia
and Indonesia had, in 1971-1972, established a delimitation of
the continental shelf between their respective coasts; the delimitation
so effected stopped short on either side of the continental shelf
between the south coast of East Timor and the north coast of
Australia. This undelimited part of the continental shelf was
called the "Timor Gap". The delimitation negotiations
which began in February 1979 between Australia and Indonesia
related to the Timor Gap; they did not come to fruition. Australia
and Indonesia then turned to the possibility of establishing
a provisional arrangement for the joint exploration and exploitation
of the resources of an area of the continental shelf. A Treaty
to this effect was eventually concluded between them on 11 December
1989, whereby a "Zone of Cooperation" was created "in
an area between the Indonesian Province of East Timor and Northern
Australia". Australia enacted legislation in 1990 with a
view to implementing the Treaty; this law came into force in
21. The Court will now
consider Australia's objection that there is in reality no dispute
between itself and Portugal. Australia contends that the case
as presented by Portugal is artificially limited to the question
of the lawfulness of Australia's conduct, and that the true respondent
is Indonesia, not Australia. Australia maintains that it is being
sued in place of Indonesia. In this connection, it points out
that Portugal and Australia have accepted the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of its Statute, but
that Indonesia has not.
30. Portugal ... argues
that the principal matters on which its claims are based, namely
the status of East Timor as a non-self-governing territory and
its own capacity as the administering Power of the Territory,
have already been decided by the General Assembly and the Security
Council, acting within their proper spheres of competence; that
in order to decide on Portugal's claims, the Court might well
need to interpret those decisions but would not have to decide
de novo on their content and must accordingly take them as "givens";
and that consequently the Court is not required in this case
to pronounce on the question of the use of force by Indonesia
in East Timor or upon the lawfulness of its presence in the Territory.
31. The Court notes that
the argument of Portugal under consideration rests on the premise
that the United Nations resolutions, and in particular those
of the Security Council, can be read as imposing an obligation
on States not to recognize any authority on the part of Indonesia
over the Territory and, where the latter is concerned, to deal
only with Portugal. The Court is not persuaded, however, that
the relevant resolutions went so far.
.........................................................[Concurring Opinion of Judge Oda]
10. On the other hand, the United Nations Charter contains a "declaration regarding non-self-governing territories" (Chap. XI) under which Member States which have or assume responsibilities for the administration of the colonial territories, accept as a sacred trust the obligation to promote the well-being of the inhabitants of these territories and, to this end, to transmit regularly to the Secretary-General statistical and other information of a technical nature relating to the territories. Portugal never supplied regular information on its own colonies scattered throughout the world and was not seen to have acknowledged that those colonies had the status of non-self-governing territories under the United Nations system.
.....In 1960 the United Nations General Assembly, after having made the "Declaration on Decolonization" proclaiming the right of all peoples to self-determination (resolution 1514(XV)), adopted a resolution addressed in particular to Portugal in which it considered East Timor to be a non-self-governing territory within the meaning of Chapter XI of the Charter and requested Portugal to transmit to the Secretary-General information on East Timor, among other non-self-governing territories under Portuguese control (resolution 1542(XV)).
Between 1961 and 1973 the General Assembly repeatedly
appealed to Portugal to comply with the decolonization policy
of the United Nations and continued to condemn Portugal's colonial
policy and its persistent refusal to carry out that United Nations
policy. In 1963 the Security Council for its part deprecated
the attitudes of the Portuguese Government and its repeated violations
of the principles of the Charter, urgently calling upon Portugal
to implement the decolonization policy (resolutions 180 (1963)
and 183 (1963)), and in 1965 once again passed a resolution deploring
Portugal's failure to comply with the previous General Assembly
and Security Council resolutions (resolution 218 (1965)). In
1972, the Security Council repeated its condemnation of the persistent
refusal of Portugal to implement the earlier resolutions (resolutions
312 (1972) and 322 (1972)).
13. On 28 November 1975
FRETILIN declared the full independence of the Territory and
the establishment of the Democratic Republic of East Timor. On
the other hand, some other political parties, such as UDT and
APODETI, which considered that it would be difficult for East
Timor to maintain its independence, were willing to be annexed
by Indonesia and on 30 November 1975 the representatives of those
groups made a declaration of the separation of the Territory
from Portugal and its incorporation into Indonesia.
.....In 1975 the General Assembly,
for the first time, adopted a resolution relating to East Timor
in which it called upon Portugal as the administering Power to
continue to make every effort to find a solution by peaceful
means through talks between the Government of Portugal and the
political parties representing the people of Portuguese Timor;
strongly deplored the military intervention of the armed forces
of Indonesia, and called upon Indonesia to desist from further
violation of the territorial integrity of Portuguese Timor and
to withdraw without delay its armed forces from the Territory
in order to enable the people of the Territory freely to exercise
their right to self-determination and independence (resolution
15. In a resolution of
1976, the General Assembly, following the same approach as the
one adopted in the previous year, upheld the rights of the people
of East Timor and strongly criticized the action of Indonesia
(resolution 31/53). It should be noted, however, that Indonesia's
claim that East Timor should be integrated into its territory
was rejected solely in order to uphold the rights of the people
of East Timor but not to protect the rights and duties of the
State of Portugal in relation to East Timor or the status of
Portugal as the administering Power. In 1977 the General Assembly
kept to the outline of the previous year's resolution (resolution
32/34); the Government of Portugal did not feature in this resolution
16. In 1980 the General
Assembly welcomed the diplomatic initiative taken by the Government
of Portugal with a view to finding a comprehensive solution to
the problem of East Timor, and indicated that the General Assembly
had heard the statements of the representative of Portugal (as
the administering Power), the representative of Indonesia, various
East Timorese petitioners and representatives of non-governmental
organizations, as well as the representative of FRETILIN (resolution
17. Portugal, which was
willing to grant independence to the people of East Timor under
the new Constitution of 1974, has not exercised any authority
over the Territory ever since the local authority was forced
to leave East Timor in 1975 on account of the turmoil in the
island. Portugal has not, since 1974, supplied any information
or statistics as required under the United Nations Charter and
under the 1960 "Declaration on Decolonization". The
United Nations, when dealing with the problem of East Timor since
1976, has never indicated that Portugal should have the right
and the duty to administer this area as a non-self-governing
18. The incident which
took place in 1991 at the Santa Cruz Cemetery in Dili in East
Timor was extremely serious from this very standpoint. Whether
the right of the people of East Timor to self-determination has
been duly respected by Indonesia may well be questioned in some
other proceedings before the Court or in the different fora of
the United Nations.
20. It follows that Portugal lacks standing as an Applicant State in this proceeding which relates to the continental shelf extending southward into the Timor Sea from the coast of East Timor in the "Timor Gap". For this reason alone, the Court does not, in my view, have jurisdiction to entertain the Application of Portugal and the Application must be dismissed.
(Signed) Shigeru ODA.
Notes & Questions
2. What was the reason(s) for Portugal not joining Indonesia as a party to this suit?
Did the ICJ effectively ignore the eight UN Security Council
and General Assembly resolutions regarding East
4. Did the ICJ properly dismiss this case, even if it appeared to pay only lip service to the principle of.self-determination?
the Court really do no more than dodge the issues, because Indonesia
would not honor any judicial
6. In June 1998, Indonesia's president offered residents of this territory a special status, whereby East Timor's culture and religion would be recognized, although Indonesia would retain political control. While it was not considered a serious gesture, it did signal willingness by Indonesia to improve the situation in its "27th province." In August 1998, Indonesia and Portugal announced an agreement on broad outlines of an autonomy plan for East Timor. The inhabitants would have local self-government and control of educational and cultural affairs. Indonesia would keep control over foreign, military, and monetary affairs. Indonesia did not answer the question, however, whether it thus intended to alter its position on absolute sovereignty over East Timor. Further analysis is available in G. Gunn, East Timor and the United Nations: The Case for Intervention (Patchogue, NY: Red Sea Press, 1997). Australia is the only Western nation to recognize Indonesian sovereignty over East Timor. In 1999, Indonesia and Portugal agreed that the residents of East Timor should choose between greater autonomy and independence. Shortly thereafter, anti-independence militiamen massacred twenty-five people in a Catholic churchyard after they had sought refuge from Indonesian forces.
7. The UN Security Council has an interest, premised not only upon its defense of free peoples, but also the UN having sponsored the August, 1999 elections in East Timor--which impacts the credibility of all UN-brokered elections. The US interest is that, in a Muslim world which does not always favor western values, Indonesia is a friend. The new President of Indonesia has fortunately opted to permit a UN force to enter East Timor to help restore the peace. In June, 1999, the UN Security Council resolved to create a UN mission in East Timor. See UN SC Res. 1246 S/RES/1246 (1999) at <http://www.un.org/Docs/scres/1999/99sc1246.htm>. In September, 1999, the UN-organized referendum in East Timor resulted in pro-Indonesian paramilitary forces terrorizing the local populace--during and after the people voted in favor of independence. The UN Security Council thus condemned Indonesia for its failure to exercise control over both pro-Indonesian paramilitary and military forces. The Council also called upon Indonesia to allow an international peacekeeping force to enter the area to restore the peace. Australia withdrew its peacekeeping troops from East Timor in February, 2000. This event was part of the scheduled handover of military responsibility to uninvolved UN forces, including troops from Brazil, Portugal, and Kenya.
The Security Council authorized
the establishment of a multinational force under a unified command
structure. The multilateral force is tasked with restoring peace
and security, protecting and supporting the United Nations Mission
in East Timor (UNAMET), and facilitating humanitarian assistance
operations. The States participating in the multinational force
are authorized to take all necessary measures to fulfill this
mandate. The Council also agreed that the multinational force
is to be collectively deployed in East Timor until replaced by
a UN peacekeeping operation as quickly as possible.
9. In July, 2000, the first UN soldier (in a force of 8,500) was slain in East Timor. A New Zealander was shot during a clash with armed opponents of independence. His patrol was pursuing a band who had crossed from Indonesian-ruled West Timor. This was the third serious attack on UN soldiers since their arrival in 1999. Source: Associated Press.
The United Nations Transitional Administration in East Timor
(UNTAET) Special Representative of the Secretary-General (aka
the "Transitional Administrator") promulgated Regulation
2000/24 establishing a "legislative mechanism that further
enhances the participation of the East Timorese people in the
decision-making process" during the East Timor transitional
administration. The represented organizations include: the Roman
Catholic Church in East Timor; the Protestant church denominations
in East Timor; the Muslim community in East Timor; the Timorese
NGO forum; and the various political districts of East Timor.
(The sub-district development councils elect district representatives.)
12. In December 2001, the US National Archives web page by George Washington University obtained and posted online documents showing that the US agreed to Indonesia's 1975 invasion of East Timor. Then Secretary of State Henry Kissinger noted that any nod by the US should be viewed in the (former) Cold War context. Indonesia's Suharto was steadfastly opposed to communism. Viet Nam had just been reunited under the communist leader Ho Chi Ming. Suharto feared that the East Timorese were seeking to separate from Indonesia and the US was uncertain about Moscow's interests. The US thus supplied about 90% of Indonesia's weapons on condition that they be used only for defense and internal security. That invasion resulted in an estimated 200,000 dead. See W. Burr & M. Evans, Ford and Kissinger Gave Green Light to Indonesia's Invasion of East Timor, 1975: New Documents Detail Conversations with Suharto, National Security Archive Electronic Briefing Book No. 62, (Dec. 6, 2001), available at: <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB62>.
13. A number of Kashmiris hope to obtain the same UN-backed assistance in their struggle for independence. A 1948 UN resolution called for a plebecite in Kashmire, when British rule ended. It was never held. Thus, the UN does not recognize either India nor Pakistan's occuparion of their respective poprtions of Kashmire.
14. In 1998, the Canadian Supreme Court articulated the following limitation on self-determination, summarized in paragraphs 123 and 138 of its opinion (italics added):
.....123 International law grants the right to self-determination
to "peoples." Accordingly, access to the right requires
the threshold step of characterizing as a people the group seeking
self-determination. However, as the right to self-determination
has developed by virtue of a combination of international agreements
and conventions, coupled with state practice, with little formal
elaboration of the definition of "peoples," the result
has been that the precise meaning of the term "peoples"
remains somewhat uncertain.
Has the Canadian Supreme Court inserted a limit not embraced by the ICJ in its East Timor case? Does the East Timor decision exclude this possible limitation in International Law?
15. Further reading is available in A. Cassese, The Holders of the Right to Self-Determination and the Means of Ensuring Observance of the Right, ch. 6, in Self-Determination of Peoples: A Legal Reappraisal 141 (Cambridge, Eng.: Cambridge Univ. Press, 1995) & S. Toope, Self-Determination--Canada--Quebec--right to secede under constitutional law and public international law--role of international law in Canadian courts, 93 Amer. J. Int'l Law 519 (1999).