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Some International Law Aspects of the East Timor Affair

Published online by Cambridge University Press:  21 July 2009

Roger S. Clark
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Extract

On December 7, 1975 Indonesian forces invaded the territory of East Timor, a Portuguese colony for some four and a half centuries. Following the 1974 Portuguese revolution, East Timor, like other Portuguese non-self-governing territories had been going through a process of self determination. Portuguese authorities evacuated the territory in August 1975 during civil disorders, condoned if not fomented by the Indonesians. The Frente Revolucianaria de Timor Leste Independente (FRETILIN), a popular group which aimed at independence for the territory after a short transitional period, gained the upper hand. It declared independence on November 28, 1975, hoping this would strengthen its hand in dealing with Indonesian border incursions. A full-scale Indonesian invasion followed.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 5 , Issue 2 , October 1992 , pp. 265 - 271
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1992

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References

1. U.N. G.A. Res. 3485(XXX), 30 U.N. GAOR Supp. (No.34) 118. U.N. Doc. A/10034 (1976): S.C. Res. 384. 30 U.N. ESCOR. Resolutions and Decisions 10. U.N. Doc. S/Res./384 (1975).

2. Although the matter refuses to go away. Note the recent press coverage of the massacre by Indonesian forces on November 12, 1991, and of the efforts of a Portuguese peace ship, the ‘Lusitania Expresso’, to reach the territory in March 1992.

3. See U.N. G.A. Res. 31/53, 31 U.N. GAOR Supp. (No.39) 125. U.N. Doc. A/31/362 (1976).

4. The text is published in 29 I.L.M. 469 (1990).

5. Case concerning East Timor (Portugal v. Australia), I.C.J., not yet reported.

6. See generally R.S. Clark, The ‘Decolonization’ of East Timor and the United Nations Norms on Self-Determination and Aggression, 7 Yale Journal of World Public Order 2 (1980).

7. See generally R.S. Clark, Timor Gap: The Legality of the ‘Treaty on the Zone of Cooperation in an Area Betweenlhe Indonesian Province of East Timor and Northern Australia’, Pace Yearbook of International Law (forthcoming, 1992).

8. Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. G.A. Res. 1514(XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684( 1960); Principles which Should Guide Members in Determining Whether or Not to Transmit the Information Called for Under Article 73e of the Charter, U.N. G.A. Res. 1541 (XV), id., at 29.

9. “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

10. A similar approach to my own is well addressed at several points in P. Escarameia, Formation of Concepts in International Law: Subsumption Under Self-Determination in the Case of East Timor (unpublished S.J.D. dissertation, Harvard Law School, 1988).

11. U.N. G.A. Res. 1542(XV), 15 U.N. GAOR Supp. (No. 16) 30, U.N. Doc. A/4684 (1960).

12. Report from Jakarta to Wellington. June 1, 1976 released under the Freedom of Information Act.

13. U.N. G.A. Res. 2625(XXV), 25 U.N. GAOR Supp. (No.28), U.N. Doc. A/8028 (1970). See to the same effect Art. 5, Para. 3 of the 1974 Definition of Aggression, U.N. G.A. Res. 3314(XXIX), 29 U.N. GAOR Supp. (No. 31) 142, U.N. Doc. A/9631 (1975).

14. Supra, note 7.

15. I. Brownlie, Principles of Public International Law, 125 (1990). Brownlie refers to the Island of Palmas Case (Netherlands v. U.S.), 2 Reports of International Arbitral Awards 829 (1928) where the Arbitrator held that Spain could transfer no more territorial rights under the 1898 Treaty of Paris than she herself had. In particular Spain could not transfer Dutch territory forming part of the Netherlands Indies (now Indonesia).

16. See the discussion in L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law 164–64 and 323–356 (1988). Needless to say, one can make the same jus cogens argument for the right to self determination.

17. Supra note 7.

18. Australia can be expected to make some procedural objections to the case based on the theory that Indonesia is a necessary party to the case and that it cannot proceed in Indonesia's absence. Indonesia is not likely to appear voluntarily since its position is indefensible on the merits. In anticipation of such an argument, the Portuguese case has apparently been shaped in such a way as to emphasize Australia’s rather than Indonesia's obligations.