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Chinkin, Christine --- "East Timor: A Failure of Decolonisiation" [1999] AUYrBkIntLaw 4; (1999) 20 Australian Year Book of International Law 35

East Timor:
A Failure of Decolonisation

Christine Chinkin[∗]

Introduction

Events in 1999 in East Timor have been frequently referred to within the media and official circles as the ‘crisis’ of East Timor. They were triggered by President Habibie of Indonesia when he indicated that he would allow the people of East Timor to choose whether they wished a form of autonomy within Indonesia or some other form of government.[1] This statement was followed by the 5 May Agreements between Portugal and Indonesia concerning a popular consultation on the future status of the disputed Territory; the establishment of the United Nations Mission in East Timor (UNAMET) to organise and conduct the popular consultation; the intimidation and violence that accompanied the rapid voter registration; the consultation on 30 August; and the widespread destruction and terror that followed the announcement by the Secretary-General on 4 September that the people of East Timor had voted overwhelmingly for self-determination. Subsequently, the United Nations and other international institutions have moved centre-stage to facilitate the transition from Indonesian occupation to independence for the Territory.

In the words of United Nations (UN) Secretary-General, Kofi Annan, the international response in 1999 has demonstrated ‘impressive political will’ to resolve the situation.[2] However, these events may also be perceived as the final act in a drama of decolonisation. This article outlines how the story of East Timor can be told as a classic drama in five acts with all the traditional ingredients of betrayal, violence, bloodshed and outstanding courage.[3] It has villains, heroes, orators and ordinary people framed in numerous roles: bureaucrats, politicians, commercial entrepreneurs and fighters for justice. It shows how the international community’s ‘impressive political will’ over more than two decades has discounted fundamental principles of its own normative framework: the prohibition of the use of force in international relations, the right to self-determination of peoples, collective security through international institutions, and the guarantee of human rights.[4] The story of East Timor shows that all these principles are contingent, flexible, and vulnerable to being ignored by all involved with the implementation of international law in favour of other political and strategic imperatives. The final act of this drama is yet to be fully scripted. It is too soon to tell whether it will unfold as a new beginning through the emergence of an independent and viable state of East Timor, or whether the weight of the international ‘protectorate’ currently operating there will undermine this vision.

East Timor: A Failure of Decolonisation

A Play in Five Acts

Leading characters

The people of East Timor, including the hundreds of thousands who have died in their struggle for self-determination

Jose Alexandre ‘Xanana’ Gusmao

Members of Falintil, the East Timor Liberation Force

Jose Ramos-Horta, Nobel Laureate

Bishop Belo, Nobel Laureate

Portugal

The Catholic Church

The Government of Indonesia:

President Suharto

President Habibie

President Wahid

Benny Murdani

General Wiranto

Nameless members of the Indonesian military and militia

The Security Council

The five permanent members of the Security Council

The General Assembly

Australia

The United Nations Secretary-General

Successive Special Envoys of the UN

Secretary-General

The United Nations Commission on Human Rights

The International Court of Justice (ICJ)

Officials, independent experts and personnel of international organisations

Arms dealers

Oil companies

Non-governmental organisations(NGOs).

Act One: Before 1975

Scene: The Island of Timor

East Timor, under the Portuguese, seemed to sit still in history. The clock of development didn’t tick there.[5]

The eastern part of the island of Timor was colonised by Portugal around 1515 and the western by the Netherlands.[6] Act One is dominated by isolation and neglect. Despite their own rich history, in common with other colonial encounters, the East Timorese existence was given account in the West only by reference to Portuguese experience,[7] which was limited. Although it attempted to exploit the colony for economic gain throughout its centuries of rule,[8] Portugal failed to build any significant long-term infrastructure for the Territory, or lay any sound foundation for its future self-rule. Colonial rule was not accepted without challenge, for example there was an uprising in the early twentieth century, but nevertheless Portuguese language and religion (Catholicism) took root in East Timor.

The island’s isolation was temporarily shattered during the Second World War when, despite Portuguese neutrality, the allies perceived East Timor as strategically significant, especially for the defence of Australia. Japan in turn invaded and occupied the Territory. Acts of staunch courage by the East Timorese in defence of Australian soldiers presaged their response to their own peril 30 years later.[9] When the allies left with many promises but little repayment, Portuguese rule continued in East Timor. West Timor became part of the new State of Indonesia through its assertion of the right to self-determination from the Netherlands in 1945 and independence in 1949. Portugal rejected the right of self-determination for its overseas territories although the General Assembly listed the colony as a non-self-governing territory.[10]

After the ‘Carnation’ revolution in Portugal in 1974, the aspiration of decolonisation became a reality for East Timor.[11] However, as in its African colonial possessions, Portugal made little preparation for an orderly transfer of power. East Timor became divided by civil war between rival political factions, notably FRETILIN (Frente Revolucionario de Timor Leste Independente) favouring independence and ADOPETI favouring integration within Indonesia and receiving Indonesian support.

An event towards the end of Act One that has done much to keep the East Timor story alive throughout the silence of Acts Two and Three, is the killing of five journalists (two Australians, two British and one New Zealander) in Balibo on 16 October 1976 at the hands of Indonesian troops.[12] In the face of obfuscation from the governments involved, relatives of the victims have repeatedly demanded from them explanations as to their knowledge of Indonesian intervention in East Timor at that time and for their accountability for the failure to warn civilians of the dangers.[13]

Act One closes with the end of the civil conflict and the declaration by FRETILIN of an independent State of East Timor on 28 November 1975, an act that received little international support through the political process of recognition. Traditional criteria for the recognition of a new state — effective control and governance[14] — were given little attention[15 ] and indeed off-stage in the few days before the beginning of Act Two a ‘green-light’ was being given to Indonesia for its invasion.[16] Among other signals, lack of recognition for the new state by significant international players facilitated its annexation by Indonesia.

Act Two: 1975–84

Scenes: East Timor and New York

They are flying over Dili dropping out paratroopers … A lot of people have been killed indiscriminately … Women and children are going to be killed by Indonesian forces … We are going to be killed … SOS … We call for your help. This is an urgent call.[17]

Act Two opens on 7 December 1975 with the brutal military invasion of East Timor accompanied by the killings of hundreds of East Timorese people, looting and terror.[18]

The scene rapidly shifts to the diplomacy and politics of the corridors of power of the United Nations and foreign capitals where the terror and bloodshed are reduced to formal issues of procedure and wrangling over the wording of resolutions. The immediate institutional responses to the invasion identify it as a matter of international concern and a violation of the substantive and procedural rights of the people of East Timor. The General Assembly responds first and adopts annual resolutions on East Timor until 1982. The first of these resolutions upholds the territorial integrity of East Timor and calls for the withdrawal of Indonesian troops,[19] but the language of its final resolution in 1982 is much weaker.[20] This resolution does little more than request the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples to keep the question under active consideration, and to call upon the United Nations specialised agencies to assist the people of East Timor. Without referring explicitly to the right to self-determination, the General Assembly does however reaffirm Portugal’s continuing status as administering Power.[21]

Portugal requests the Security Council also to respond urgently to the invasion. The Security Council hears representations from Indonesia, Portugal and, most dramatically, from representatives of East Timor. FRETILIN member, Jose Ramos-Horta , who was away from East Timor at the time of the invasion, pleads passionately for assistance for his people. As United Nations Ambassador for East Timor he becomes a familiar and frustrated figure in New York and Geneva. The Security Council calls upon all states to respect the territorial integrity of East Timor and the inalienable right of its people to self-determination in accordance with General Assembly Resolution 1514. It also calls upon Indonesia to withdraw its forces immediately from the Territory and upon 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’.[22] It reiterates many of these points the following year and calls upon ‘all States and other parties concerned to co-operate fully with the United Nations to achieve a peaceful solution of the existing situation’.[23]

By any yardstick, these resolutions are minimalist. While the right to self-determination is notionally upheld, no sanctions are imposed upon Indonesia and no duties are required of third states, such as non-recognition of an illegal occupation of territory[24] or an obligation not to deal with Indonesia with respect to East Timor.[25]
The use of force to reverse the occupation of East Timor is not envisaged. Geo-political and strategic interests (such as the importance of the Ombai-Wetar straits for deep-water submarine passage[26]) ensure that western states do little more than give Indonesia a mild public rap over the knuckles for its violations of international law. Australia, East Timor’s closest international neighbour, goes further. Motivated by its desire to negotiate a maritime boundary between the waters, seabed and subsoil off its own coast and those off the coast of East Timor that it had been unable to do with Portugal, it recognises the annexation de facto in 1978 and de jure in 1979.

And what of events in East Timor? After the opening anguish of Act Two, the Territory and people of East Timor are rarely seen or heard again throughout Acts Two and Three. It is through the voices of exiles like Jose Ramos-Horta that the play continues, although the opposing voice of Indonesia repeatedly attempts to drown them out. Indonesia claims that the Act of Integration of the ‘Peoples Assembly of East Timor’, 31 May 1976 has legitimately annexed the Territory as the Twenty-Seventh Province of Indonesia. This Assembly takes place off-stage as it is observed only by a few handpicked foreign journalists and there are no United Nations observers present because attendance would be incompatible with Security Council Resolution 384. The Indonesian National Assembly passes a corresponding Statute of Integration on 17 July 1976. Internationally East Timor assumes a ghost-like presence. In the eyes of the General Assembly it remains formally a non-self-governing territory with Portugal as administering Power, although that state has had no presence there since 1975. The Security Council fails to give any clear guidance as to whether the legal right to self-determination (reasserted in Resolution 389 in April) has been satisfied by the acts of May and July. Indeed the Security Council is silent on the subject of East Timor from April 1976 until 7 May 1999. The words of Ali Alatas, Indonesian foreign minister, and Xanana Gusmao, former Jesuit priest, poet and President of FRETILIN after 1981, summarise the opposing views with respect to the legality of these acts:

By that act, four centuries of Portuguese colonialism and of oppression and suffering for the people of East Timor and months of fratricidal strife and bloodshed had come to an end … Indonesia's subsequent involvement in East Timor can therefore be seen as endeavouring to respond as restrainedly as possible, to the chaotic and tragic circumstances which unfortunately accompanied the decolonization process in East Timor.[27]

A government which was established to the accompaniment of the sound of shelling by sea and land of a defenceless population, to the sound of advancing tanks and cannons, can such a government claim any juridical standing?[28]

Little is known about the ‘world of terror’[29] and the organisation of resistance within East Timor after the purported annexation. Foreign visits are curtailed,[30] controlled and manipulated by Indonesia as it attempts to finish all resistance through its policies of ‘encirclement and annihilation’,[31] population resettlement and starvation.[32] Hundreds of thousands die.[33] Attempted negotiations between Indonesia and FRETILIN by Winspeare Guiccardi, the Secretary-General’s Special Representative, are aborted as he is unable to meet with FRETILIN and the Secretary-General announces on 25 July 1984 that further discussions between Indonesia and Portugal are deferred. Despite accounts from refugees and from the East Timor resistance,[34] foreign states profess ignorance of what is occurring.

Act Two closes with a rare, but misleading, glimpse into the Territory. In 1983 the Prime Minister of Australia, Bob Hawke, sends a fact-finding delegation to East Timor to assess the different accounts given by the Indonesians and Timorese exiles. The visit is controlled by the Indonesians and skilfully presented by them as a goodwill mission rather than as an independent investigation.[35] We see the FRETILIN representatives waiting all night to intercept the delegates’ convoy and their despair when their account is distorted by Indonesian military interpreters and discounted by the delegates. At the end of Act Two there is a fade out from East Timor.

Act Three: 1991–1995

Scenes: East Timor, Geneva, Jakarta and The Hague

Who is afraid of a referendum? Why are they afraid of a referendum? As a political prisoner in the hands of the occupiers of my country it is of no consequence at all to me if they pass a death sentence here today.[36]

In the Court's view, Portugal's assertion that the right of peoples to self determination, as it evolved from the Charter and from United Nations practice has an erga omnes character, is irreproachable. The principle of self determination of peoples is one of the essential principles of contemporary international law. However the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations involved, the Court could not rule on the lawfulness of the conduct of another state which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.[37]

Act Three opens in 1991 and it becomes apparent that the world has moved on. If this were truly a Shakespearean drama there would be a chorus, or player providing the people of East Timor with a breathless account of momentous happenings elsewhere: the end of the cold war and the break up of the Soviet Union; the end of the annexation of the Baltic States;[38] the invasion of Kuwait and the Security Council authorisation of the use of ‘all necessary means’[39] to remove Iraq from Kuwait.[40] These events might encourage the East Timorese to be optimistic about a change in international attitudes with respect to their situation. However as the Act unfolds it is apparent that any such optimism is misplaced.

The first action in Act Three is another bitter reminder of the violence in East Timor and shows that the opening of East Timor in 1989 to tourism and some trade has not lessened the realities of a harsh military occupation. The Catholic Church, under the local leadership of Bishop Belo, is a focal point for opposition to Indonesian rule and the setting for the massacre at the Santa Cruz cemetery on 12 November 1991. On this occasion the killings are caught on video and cannot be denied.[41] The death of Kamal Bamadhaj, a New Zealand student, also ensures some foreign attention. Despite some limited action against the killers,[42] the Indonesian military presence continues to menace the civilian population[43] and act against the armed resistance. Indonesia’s military strength is supported by arms sales from western countries; Act Three is played out against the distinctive noise of British Hawk ground aircraft.[44] The already apparently desperate situation of FALANTIL,[45] the East Timorese Liberation Force, is worsened by the capture of leader Xanana Gusmao on 20 November 1992, the third leader to fall into Indonesian hands. With tiny numbers and pitiful resources the resistance continues.

Away from East Timor, the Santa Cruz massacre and the arrest of Gusmao have aroused greater concern about human rights abuses in East Timor than previously. The scene shifts to Geneva where demands are made for some accountability before the United Nations Commission on Human Rights. Reports are produced detailing the abuses,[46] but Indonesia is able to mobilise sufficient support to avoid condemnation.[47 ] Not until 1997 is the Commission on Human Rights able to agree a resolution against Indonesia.[48] The voices at the United Nations bodies are supplemented by the growing number of NGOs focusing on the situation in East Timor.[49] The Secretary-General appoints a Personal Envoy, Amos Wako, to obtain clarification of the events and exercise his good offices to attempt to reopen talks between Portugal and Indonesia to find a lasting solution to the question of East Timor.

The dramatic potential of courtroom scenes has been recognised by many a writer of plays. This one has two such scenes. The first is the trial of Xanana Gusmao in Jakarta. There is at first dismay at his apparent initial capitulation, made on video and shown to the hushed audience. Then at the trial he rejects his designation as ‘just a street criminal’.[50] He is prevented from reading his defence plea to the Court on the grounds that it is irrelevant and is sentenced to life imprisonment on 21 May 1993 by Judge Hieronymus Godang who asserts that ‘his actions created unrest among the people and disturbed stability in East Timor’.[51] Gusmao defiantly responds ‘long live East Timor’ as he is taken from the Court.

The second courtroom scene is in The Hague and it is made more memorable by the roles of those who are not before the Court than by those who are. The quiet dignity of the International Court of Justice is a far cry from the Jakarta courtroom but it is here that the next scene is played out through the legal proceedings brought by Portugal against Australia. Portugal’s accession to the European Community in 1986 has encouraged Portugal to seek additional arenas in which to raise Indonesia’s actions. The Timor Gap Treaty[52] between Indonesia and Australia designates East Timor as an Indonesian Province. Its entry into force in December 1991 (just weeks after the Santa Cruz massacre) leads Portugal to commence proceedings against Australia on 22 February 1991. Portugal claims that ‘certain activities of Australia with respect to East Timor’ amount to a failure by Australia to respect the duties owed to Portugal as administering Power in East Timor, as well as the right of the people of East Timor to self-determination. Australia rejects the jurisdiction of the Court on a number of grounds, arguing that there is in reality no dispute between itself and Portugal, and that the true respondent should be Indonesia. It is Indonesia’s actions that deserve scrutiny not Australia’s.[53 ] The Court finds that it cannot exercise its jurisdiction because this would involve it in pronouncing upon the legality of Indonesia’s actions in that state’s absence from the Court. Applying its earlier decision in the Monetary Gold Case[54] the Court finds that the very subject matter of its decision would require it to determine the circumstances in which Indonesia entered and remains in East Timor. It cannot make such a determination without Indonesia’s consent.[55]

The absence of Indonesia from the Court is matched by that of East Timor. Although many East Timorese people attend the oral arguments daily, their claims cannot be made directly to the Court. They are silenced here and must rely upon the arguments of a state that abandoned them in the face of conflict in 1975. The Court’s recognition of their erga omnes right to self-determination provides a moral boost but offers little practical guidance to the East Timorese as to how they might avail themselves of it. In addition the Timor Gap Treaty makes mockery of the provision that no peoples shall be deprived of their natural resources.[56] Licences are issued for the exploration and exploitation of the oil resources of the Timor Gap.

Act Three closes bleakly with little prospect of achievement of the right to self-determination.

Act Four: 1998 to 7 September 1999

Scenes: Indonesia, New York and East Timor

One would have said beyond a doubt
This was the very end of the bout,
But that the creature would not die.
… The fight was done,
And he had lost who had all but won.
But oh his deadly fury then.
…Could nothing save
These rags and tatters from the claw?
Nothing. And yet I never saw
A beast so helpless and so brave.
And now, while the trees stand watching, still
The unequal battle rages there.
And the killing beast that cannot kill
Swells and swells in his fury till
You might well think it was despair.[57]

Act Four commences in Indonesia amid the confusion of the financial crisis and dying days of the Suharto regime in May 1998 and moves to the startling announcement by the new President Habibie, first that he is prepared to consider a special autonomous status for East Timor within the unitary Republic of Indonesia and subsequently that he will allow independence if autonomy is rejected.

In New York the legal framework for the popular consultation within East Timor is negotiated. In three agreements between Portugal, Indonesia and the UN on 5 May 1999,[58] arrangements are worked out for the preparations and holding of the universal and secret ballot through which the East Timorese can determine their future destiny. Other articles relate to reporting of the ballot results and subsequent constitutional amendments according to the outcome. The Secretary-General of the UN is requested to establish a Mission to enable the effective carrying out of the consultation, but fatefully the Agreements allow Indonesia responsibility for peace and security within East Timor (despite its continued recognition by the UN as a non-self-governing territory) and for ensuring that the consultation is carried out ‘in an atmosphere free of intimidation, violence or interference from any side’. Despite Portuguese pressure the Indonesian army is not required to withdraw.[59 ] The Security Council adopts these agreements and authorises the establishment of UNAMET‘to organize and conduct a popular consultation’ in East Timor.[60]

A shift of scene back to East Timor with the arrival of UNAMET is heavy with foreboding. In the Territory it is immediately clear that sinister forces are being mobilised.[61] Pro-integration militia groups have been forming and have been carrying out with impunity acts of intimidation and brutality since before the 5 May Agreements. Preparations for the consultation have to be made with great rapidity as the consultation is scheduled for 8 August, just three months away.[62] As it approaches killings and beatings intensify and people are very afraid.

Despite UNAMET’s efforts the consultation has to be twice postponed and there is great concern as to whether it can be successfully held. Militias, frequently supported by Indonesian security forces, prevent pro-independence groups opening their offices in many towns and destroy many that are opened. Intimidation prevents those supporting independence from campaigning. Thousands flee their homes. But despite the escalating violence many East Timorese people fear that there may never be another chance to express their wishes. Observers from intergovernmental and non-governmental organisations begin to flood into the Territory to ensure the legitimacy of the ballot. A three-person Electoral Commission deems the preparations to be sound and the consultation is to go ahead.

30 August 1999, the long-anticipated polling day dawns. The early morning light reveals long lines of courageous East Timorese people clutching registration cards, many of whom have walked all night, dressed in their best clothes to cast their votes. The atmosphere is determined but very tense as people hold hands, or huddle together for safety against militia.[63] The turnout surpasses all expectations – over 98 per cent of the 451, 792 voters registered.[64]

Any feelings of elation are muted throughout the tense days before the announcement of the result. On 3rd September in New York the Secretary-General tells the Security Council that the people have voted 94,388, or 21.5 per cent in favour, and 344,580, or 78.5 per cent, against the proposed special autonomy.[65]

With the announcement of the result hell descends upon East Timor. Pro-integration militia members armed with machetes, guns and grenades run rampant as they slaughter, loot, rape and burn East Timor. Churches, schools, houses and other places of shelter are targeted. Bishop Belo is attacked twice in 24 hours and forced to flee to Australia. His personal assistant is murdered, as are priests and nuns.[66] Militia men come into East Timor from West Timor to assist in the destruction.[67] Indonesian police and military turn aside and do not prevent the coordinated devastation; indeed they organise and back the violence.[68] Hundreds of thousands of East Timorese people are displaced,[69]
some fleeing into the mountains, some seeking refuge at the UN compound, others crossing (voluntarily and forced) the border into West Timor, or forcibly transported elsewhere in Indonesia. UNAMET is powerless in the face of what appear to be deliberate attempts to expel the UN from the Territory. UNAMET regional compounds are forced to close and after being trapped in their compound in Dili, most UNAMET personnel are evacuated along with foreign observers, international relief workers and journalists.[70] The imposition by General Wiranto, Indonesian military commander, of martial law on East Timor on 7 September makes little difference. Act Four closes with East Timor again closed to the international community and ‘suffering what amounted to a campaign by the military to exterminate East Timorese and lay waste to its cities’.[71]

Act Five: September 1999 to the present

Scenes: New York and East Timor

The wolves have preyed; and look, the gentle day,
Before the wheels of Phoebus, round about
Dapples the drowsy east with spots of grey.[72]
But now we must not think of the past but of the future.
We do not fear the future.[73]

Act Five commences back in New York where the contrast with the situation in East Timor is stark. As in 1975 Portugal takes a lead[74] in seeking to confront the Security Council‘with its responsibilities in managing the appalling crisis in East Timor’.[75] Although preoccupied by the crisis, the Security Council is cautious, bound, as it considers itself to be, by the 5 May Agreements giving Indonesia the responsibility for law and order in East Timor.[76] Neither United Nations Charter, chapter VII enforcement action without Indonesian consent nor countermeasures against a prior illegal act are authorised. While people die and their Territory is devastated, diplomatic efforts are made to persuade a resistant Indonesian government to consent to intervention. The Security Council sends a Mission on 8 September to Jakarta and Dili to discuss with the government concrete steps for the implementation of the Agreements. Before the Mission returns to New York, the Dutch President accedes to Portugal’s urging and takes the unusual step of convening an open Security Council debate.

The stage is crowded on 11 September for this event. Members are joined by the Secretary-General, representatives of Indonesia and Portugal (at the Council table) and those of Angola , Australia , Belarus , Cambodia , Cape Verde , Chile , Cuba , Ecuador , Egypt , Finland , Germany , Greece , Guinea-Bissau , Ireland , Islamic Republic of Iran , Iraq , Italy , Lao People’s Democratic Republic, Mozambique , New Zealand , Norway , Pakistan , Papua New Guinea , Philippines , Republic of Korea , Singapore , Spain , South Africa , Sudan , Sweden , Uruguay and Vietnam, States that had long been blind to the situation in East Timor now join the Secretary-General in urging Indonesia to restore law and order and to accept international assistance in doing so. In a dramatic shift from its stance since 1976,[77 ] Australia repeats before the Security Council an earlier offer to contribute to, and lead, a multi-nation security force. The United States warns that Indonesia is facing the ‘point of no return in its international relations’ and that it may become ‘isolated in the world community’.[78] Relief is felt in New York on Sunday 12 September when it is learned that President Habibie will accept the deployment in East Timor of an international force, comprising troops from friendly nations. Foreign Minister Alatas is sent to New York to discuss the details. On 14 September the Mission reports to the Security Council and at last on 15 September the Security Council, acting under chapter VII, authorises ‘the establishment of a multinational force … pursuant to the request of Indonesia… with the following tasks: to restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks and, within force capabilities, to facilitate humanitarian assistance operations, and authorizes the States participating in the multinational force to take all necessary measures to fulfil this mandate’.[79] Consistent with the failure to condemn Indonesia’s occupation for 24 years, the Resolution does not sanction or even criticise Indonesia’s failure to comply with its obligations under the 5 May Agreements.

The final scene is again in East Timor. Following the deployment of the International Force for East Timor (INTERFET) from 20 September internal security and order are slowly restored. Militia are disarmed and arrested. UNAMET is re-established, food drops commence, a Humanitarian Operations Centre is established in Dili and East Timorese people begin to return, although thousands remain unaccounted for. The Territory that had been abandoned by the international community for so long is now a centre of international intergovernmental and non-governmental activity.[80] On 23 October Xanana Gusmao at last returns to Dili to emotional scenes and pledges ‘that tomorrow is ours’.[81] Before his arrival he has presided over a meeting of the National Council of East Timor Resistance (CNRT) in Darwin, Australia. The CNRT was established in the 1990s as an umbrella resistance group. Although it is now officially an advisory body, it represents the way to independence for the Timorese. After the Indonesian Peoples’ Consultative Assembly accepts the East Timorese vote on 19 October 1999, remaining Indonesian officials and military withdraw. The last soldiers leave on 30 October and are bid farewell by Gusmao.

The international financial institutions start to draw up plans for reconstruction. In light of the lack of any functioning civil service, legal system or medical services and the crisis in services such as electricity, water and housing, the Secretary-General proposes a United Nations Transitional Authority for East Timor (UNTAET). UNTAET, conceived as an ‘integrated, multidimensional operation’,[82] is established by the Security Council under United Nations Charter, chapter VII on 25 October with an initial mandate until 31 January 2001.[83] There is a transitional period as INTERFET is replaced by UNTAET, ending in early 2000. UNTAET has extraordinary powers: it is ‘endowed with overall responsibility for the administration of East Timor and … empowered to exercise all legislative and executive authority, including the administration of justice’. It comprises components for governance and public administration, humanitarian assistance and rehabilitation and military oversight. It is an innovation for the United Nations with broader competence over a territory than ever before bestowed upon an international body.

Evidence is collected of human rights abuses and survivors give their accounts. The International Commission of Inquiry, established by the Secretary-General at the request of the Commission on Human Rights [84] to investigate the crimes committed since the announcement in January 1999 of the vote,[85] visits the Territory from 25 November to 3 December.[86] The Indonesian Commission of Inquiry into Human Rights Violations in East Timor comes twice to the Territory. Visits are also made by United Nations special rapporteurs: on extrajudicial, summary or arbitrary executions, on torture and on violence against women.

As the play ends (May 2000) UNTAET is exercising its robust mandate. Particular attention is being given to security (which has been largely restored), humanitarian assistance and government institution building. Far-reaching legislative and administrative programs are under way. Attention has been given to recruiting and training police forces, public administrators and judges. But it is too soon to say whether this is truly a happy ending. The tasks are overwhelming, the East Timorese are in ‘desperate straits’[87] and pledged assistance is slow to materialise.[88] Some violence continues and crime is increasing, especially among unemployed young men. Thousands of people are still missing. Mass graves are uncovered. People seek justice, recognition of their rights and of the crimes committed against them and against humanity, but it is not clear how or where trials, or other proceedings, will take place. Many also seek reconciliation.[89]

The very level of international intervention limits the space available for the East Timorese who have waited so long for the opportunity to control their own affairs.[90] This is especially hard for the members of FALANTIL who have sacrificed much to keep the dream alive, but whose place in the reconstruction is unclear. Although CNRT has seven seats on the National Consultative Council (NCC), a 15-member advisory body set up by UNTAET 2 December,[91] and the importance of intensive consultation with the East Timorese recognised,[92 ] members of CNRT have spoken of feeling marginalised and sidelined in political and economic decision-making.[93] Inevitably United Nations bureaucracy causes major delays in getting services restored and reconstruction under way.[94] There is a bewildering array of languages used by the East Timorese and the international agencies.[95] There are also many currencies in use: Australian dollars, Portuguese escudos, US dollars, and the Indonesian rupiah [96] and raging inflation in Dili due to the overwhelming presence of UNTAET’s ‘paternalistic machine’ with its own budget of $700 million.[97] United Nations agencies, the World Bank, governments and NGOs have established missions in Dili. Foreign cars, communications equipment, hotels and restaurants are available for the foreign relief community, but the East Timorese have to walk, as they did to welcome Xanana Gusmao and Jose Ramas-Horta back to Dili, and for many, basic needs remain unmet. Deep poverty is causing frustration and related clashes between rival groups regularly erupt.[98] While the international presence offers jobs where there is 80 per cent unemployment, there are also concerns that local people will not be able to compete effectively for contracts and commercial undertakings.

Epilogue

Act Five is not yet complete but it is perhaps appropriate to reflect on the backdrop provided by international law throughout the drama of East Timor. Although frequently disregarded, this backdrop has never been discarded. The colonial powers applied international law doctrines developed by themselves on the acquisition of territory to divide the island of Timor without regard to the interests of the inhabitants.[99] After the Indonesian invasion the East Timorese argued international legal doctrine relating to the prohibition of the use of force and the right to self-determination in whatever arenas were available to them as non-state actors. Representatives were heard before the Security Council but could not present their case before the ICJ. Claims were made with mixed success in national courts, for example of refugee status,[100] as a defence to criminal trespass[101] and, in Australia, of the illegality of the Timor Gap Treaty.[102] The most effective arena for the East Timorese has been that of committed and tireless NGOs around the world that in turn have used the language of international legal obligation to add to the moral weight of their arguments to governments and have been angered by the deafness of decision-makers.

Portugal, relying upon the post-1975 legal fiction of its continuing status as administering Power, has also sought to mobilise response from the international community in the United Nations, the ICJ and the institutions of the European Community. Substantive legal argument was undermined in the General Assembly and Security Council by political imperatives, in the ICJ by procedural requirements and for a long time in the Commission on Human Rights by the support that Indonesia could muster. Under international law doctrine the Portuguese colonisation of East Timor differentiates its claims for self-determination from those of peoples colonised by the Netherlands who now also challenge Indonesian rule.[103] Until 1999 the East Timorese had never had the chance to choose freely their future political and economic status while the latter’s right to self-determination has been regarded as exercised when Indonesia gained independence in 1949.[104] While this may appear an accident of history and a manifestation of how the colonial past rules the future, the application of international law to East Timor stands apart and leaves open the response to other self-determination claims to be assessed on their own merits. Nevertheless when the Security Council at last responded in 1999 to assist the East Timorese the language of international law was muted. The creation of a multi-national force was justified by the acts of violence and the need for co-ordinated humanitarian assistance and to assist UNAMET. Indonesia’s violations of international law over a 24-year period were neither condemned nor punished. Despite the invocation of chapter VII of the United Nations Charter Indonesia’s consent was required before intervention could take place to protect those subject to violence and terror.

In the current phase of transition many issues of international law remain. These include succession to the Timor Gap Treaty now that Indonesia no longer controls the East Timor seabed and sub-soil;[105] the legitimacy of maritime boundaries negotiated by a previous illegal regime before the entry into force of the United Nations Convention on the Law of the Sea;[106] responsibility for the commission of crimes against humanity; and the numerous legal issues arising out of the actions of international organisations in the administration of the Territory. Unlike the earlier questions these can be addressed free from the intimidation of illegal occupation and use of force. As Act Five continues we can speculate how much less would have been needed to establish an independent state of East Timor and how many lives would have been saved if the members of the international community had insisted that Indonesia comply with its obligations under international law at a much earlier date and had not themselves been complicit in its violations.


[∗] London School of Economics and Political Science.

[1] On 9 June 1998 President Habibie suggested that he would consider a ‘special status’ and wider autonomy within Indonesia for East Timor. On 5 August 1998, the United Nations brokered an agreement between Indonesia and Portugal, in which both sides committed to working towards an agreement on wide-ranging autonomy. On 27 January 1999 President Habibie went further by indicating that he would discuss independence if the East Timorese rejected an autonomous status; ‘From Pledge to Pledge via Death and Destruction’ The Guardian (13 September 1999) <http://www.guardianunlimited.co.uk/Archive/Article/0,4273,3909537,00.html> .

[2] The Secretary-General Briefing to the Security Council on Visit to South East Asia, New York, 29 February, 2000 <http://www.un.org/peace/etimor/docs/BSG.htm> .

[3] Presenting the tragedy of East Timor in narrative terms is not a new idea. The outstanding novel by Timothy Mo, The Redundancy of Courage (1991), recounts the invasion and brutal military occupation of a small Asian island by its large neighbour.

[4] The international legal arguments have been addressed in many publications. This article will not repeat them but rather attempts to demonstrate the interactions between law, process and political claims in the processes of self-determination. See especially the chapters in Catholic Institute for International Relations/International Platform of Jurists for East Timor, International Law and the Question of East Timor (1995).

[5] Jose Ramos-Horta, cited M Jardine, East Timor: Genocide in Paradise (2nd ed, 1999) 18.

[6] In 1651 the Dutch conquered Kupang on the western end of the island and a colonising force landed in 1656. In 1859 a treaty between Portugal and the Netherlands established the borders between West and East Timor. On the colonial history see G Aditjondro, In the Shadow of Mount Ramelau The Impact of the Occupation of East Timor (1994); A Barbedo de Magalhaes, East Timor Indonesian Occupation and Genocide (1992). Conflict continued between the colonising powers and the division was further formalised in 1913; M Jardine, ibid 19–20. Oecussi has remained as an enclave of East Timor within the west of the island.

[7] ‘The Timorese exist only in their encounter with colonialism.’ J Taylor, Indonesia’s Forgotten War. The Hidden History of East Timor (1991) 1.

[8] The major commercial asset in East Timor was sandalwood. The Portuguese attempted to introduce other cash crops in the early twentieth century, notably copra and coffee. G Aditjondro, above n 6.

[9] M Turner, Telling: East Timor Personal Testimonies 19421992 (1992).

[10] GA Res 1514 (XV) GA Res 1541 (XV), GA Res 1542 (XV), Report to the Commission on Human Rights, Report of the Committee on Information from Non–Self-governing Territories, GAOR UN Doc A/4371 15th session supp. No 15 1960.

[11] Portuguese Law 7/74, 27 July 1974, affirms its acceptance of independence for its overseas territories.

[12] J Taylor, above n 7, 60–2. See H McDonald, ‘Revealed: Timor Cover-up’ Sydney Morning Herald (24 August 1998) 1, for an account of the Sherman report in 1995 and the Report of the International Commission of Jurists, Australian Branch, 1998 into the deaths.

[13] J Pilger, ‘Blood on Our Hands’ The Guardian (25 January 2000 <http://www.guardianunlimited.co.uk/Archive/Article/0,4273,3812281,00.html> .

[14] I Brownlie, Principles of Public International Law (5th ed, 1999) 85–104.

[15 ] Taylor argues that FRETILIN had ‘devised development strategies whose full implementation could have created the infrastructure for a successfully planned economy, based on the indigenous needs of the population. In every sense, economically, politically, socially and culturally, the foundations for a successful nation-State had been created.’ J Taylor, above n 7, 65. In any case GA Res 1514 (XV) [3] provides that inadequacy of political, economic or social preparedness should ‘never serve as a pretext for delaying independence’.

[16] Among many signals that have been suggested as green lights are the lack of official protests over the deaths of the journalists because to question Indonesia’s position would ‘invite a hurt and angry reaction’ and the visit of President Ford and Secretary of State Kissinger to Jakarta that ended on 7 December 1975; J Taylor, above n 7, 60–2. Pilger, above n 13, cites a cable from the British Ambassador in Jakarta to his Foreign Office as illustrative of the attitude of western states: ‘It is in the British interests that Indonesia absorb the Territory as soon and unobtrusively as possible and when it comes to the crunch we should keep our heads down.’ For similar views expressed by the Australian Ambassador see R Clark, ‘Obligations of Third States in the Face of Illegality — Ruminations Inspired by the Weeramantry Dissent in the Case Concerning East Timor’ in A Anghie and G Sturgess (eds), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (1998) 635 fn 17.

[17] Broadcast from Alarico Fernandes, Information Minister, FRETILIN, early morning 7 December 1975, cited J Taylor, above n 7, 64.

[18] One Australian journalist remaining in Dili, Roger East, was also murdered on the first morning and thrown into what became known as the Sea of Blood; J Pilger, above n 13.

[19] GA Res 3485 (XXX), 12 December 1975.

[20] GA Res 37/39, 23 November 1982. The vote was 50 in favour, 46 against and 50 abstentions. Concern that another resolution would not be passed prevented further General Assembly resolutions.

[21] This remained the General Assembly’s position until December 1999 when it concluded its consideration of the ‘Question of East Timor’ and placed a new item on its agenda ‘The Situation in East Timor during its Transition to Independence’ GA Res 54/194, 15 December 1999.

[22] SC Res 384, 22 December 1975.

[23] SC Res 389, 22 April 1976.

[24] Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States, GA Res 2625 (XXV) states: ‘No territorial acquisition resulting from the threat or use of force shall be regarded as legal.’

[25] As was done, for example with respect to South Africa’s continued occupation of South West Africa (Namibia); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16.

[26] The straits are located north of East Timor. During the cold war years they were strategically important because they gave US passage to the Pacific Ocean. In the South East Asian area only the Indonesian straits of Ombai-Wetar and Lombok are physically useable by submerged submarines.

[27] A Alatas, Minister for Foreign Affairs of Indonesia, ‘East Timor De-bunking the Myths around a Process of Decolonization’, paper presented to Members of the National Press Club, Washington DC, 20 February 1992. GA Res 1541 (XV) allows integration with an existing state as a means of achieving self-determination, provided that option is freely chosen.

[28] Xanana Gusmao, extracts from his 48-page defence plea to the Indonesian Court, cited The Guardian, 22 May 1993. For the legal arguments supporting this view that the East Timorese did not ‘freely’ exercise their right to self-determination see R Clark, ‘The “Decolonisation” of East Timor and the United Nations Norms on Self-determination and Aggression’ in International Law and the Question of East Timor, above n 4, 65; P Escarameia, ‘The Meaning of Self-determination and the Case of East Timor’ ibid 119.

[29] J Taylor, above n 7, 110.

[30] The International Committee of the Red Cross (ICRC), human rights groups and foreign journalists were denied any general access; G Aditjondro, above n 6.

[31] J Taylor, above n 7, 79.

[32] Ibid 92.

[33] 200,000 out of a 1974 population of 700,000 are estimated to have died between 1976 and 1986 through killings, hunger, forced migration, crop failure and disease; G Aditjondro, above n 6, 9. See ibid 37–40 for the pattern of these deaths. Pilger argues that this figure may be too low; J Pilger, above n 13

[34] Eg, Xanana Gusmao, Message to the thirty-seventh UN General Assembly, 14 October 1982 cited in X Gusmao, To Resist is to Win!: The Autobiography of Xanana Gusmao (2000) 74.

[35] For a description of this visit see J Taylor, above n 7, 137–142.

[36] Xanana Gusmao, above n 28.

[37] Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90 [29].

[38] Recognition of the independence of the Baltic States, annexed by Stalin during the Second World War, discredited the concept of historical consolidation, that is that time could bestow legitimacy upon illegal acts of occupation, that had been asserted in the case of East Timor; J-P Fonteyne, ‘The Portuguese Timor Gap Litigation before the International Court of Justice: A Brief Appraisal of Australia’s Position’, 45 Australian Journal of International Affairs (1991) 170.

[39] SC Res 678, 29 November 1990.

[40] The case for international assistance to East Timor appears to be even stronger than for that to Kuwait. As a sovereign state, Kuwait has the right to individual and collective self-defence under United Nations Charter, article 51. As a non-self-governing territory East Timor has no such right and must rely on states to uphold its right to self-determination; S Marks, ‘Kuwait and East Timor: A Brief Study in Contrast’ in International Law and the Question of East Timor, above n 4, 174.

[41] British journalist Max Stuhl’s video of these events ensured their wide coverage.

[42] Indonesia imposed some internal punishment against the military for the massacre. Three senior army officials were said to have been dismissed, two taken off active duty and one suspended. Eight others of lower rank were also court-martialled; Keesings Record of World Events, News Digest, February 1992, 38769.

[43] There is particular anger at the trials of civilians for subversion and other crimes arising out of the Santa Cruz massacre, who received harsher penalties than members of the military; Keesings Record of World Events, News Digest, March 1992, 38818.

[44] See J Taylor, above n 7, 133–4; European Campaign against Arms, Netherlands, Stop Arming Indonesia: a European Perspective on Arms Trade to a Military Regime (1994).

[45] Since 1986 FALINTIL and the FRETILIN hierarchy have been separate; G Aditjondro, above n 6, 87 fn 33.

[46] See report by the Working Group on Enforced and Involuntary Disappearances, UN Doc E/CN.4/1993/25 [278]–[290]; report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, UN Doc E/CN.4/1993/46 [348]–[53]. Other reports followed in subsequent years. The Sub-Commission on the Prevention of Discrimination and the Protection of Minorities also takes up the issue; UN Doc E/CN.4/Sub.2/1993/14, 28 July 1993.

[47] The Commission on Human Rights requests the Secretary-General to follow closely the human rights situation in East Timor; UN Doc E/CN.4/1992/84 [457]. The Secretary-General reports the following year; ‘Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World, with particular Reference to Colonial and other Dependent Territories, Situation in East Timor, Report of the Secretary-General’, UN Doc E/CN.4/1993/49. This is followed by further reports in the following years.

[48] Commission on Human Rights Res 1997/63 expresses concern about the human rights situation in East Timor. It was adopted by 20 votes to 14, with 18 abstentions.

[49] In November 1991 the International Platform of Jurists for East Timor (IPJET), a NGO with focus upon legal strategies, is formed in Lisbon; see D Kennedy, ‘Autumn Weekends: An Essay on Law and Everyday Life’ in A Sarat and T Kearns (eds), Law and Everyday Life (1993). Tapol, Amnesty International, Asia Watch and the International Commission of Jurists are among other NGOs that express concern about the killings and the subsequent legal proceedings.

[50] Benny Murdani, Indonesia Defence Minister, Sydney Morning Herald, (26 November 1992) 11.

[51] The Guardian, (22 May 1993).

[52] Treaty between Australia and the Republic of Indonesia on the Zone of Co-operation in an Area between the Indonesian Province of East Timor and Northern Australia, Timor Sea, 11 December 1989, in force 9 February 1991, Aust TS No 9, 1991.

[53] Portugal bases its jurisdiction on the declarations made by itself and Australia under the Statute of the International Court of Justice, 1945, article 36 (2).

[54] Case of the Monetary Gold removed from Rome in 1943 (Italy v France, United Kingdom and the United States) (Preliminary Question) [1954] ICJ Rep 1.

[55] For critiques of the ICJ decision see C Chinkin, ‘The East Timor Case (Portugal v Australia)’ (1996) 45 International and Comparative Law Quarterly 712; I Scobbie and C Drew, ‘Self-determination Undetermined: The Case of East Timor’ (1996) 9 Leiden Journal of International Law 185 (1996); G Simpson, ‘Judging the East Timor Dispute: Self-determination at the International Court of Justice’ (1994) 17 Hastings International and Comparative Law Review 323.

[56] International Covenant on Economic, Social and Cultural Rights, 16 December 1966; Aust TS 1976 No 5, and International Covenant on Civil and Political Rights, 16 December 1966; Aust TS 1980 No 23; common article 1 (2) states: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

[57] Edwin Muir, The Combat (1949).

[58] Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor (witnessed by the Secretary-General); Agreement between the United Nations and the Governments of the Republic of Indonesia and the Portuguese Republic Concerning Security Arrangements; Agreement between the United Nations and the Governments of the Republic of Indonesia and the Portuguese Republic Concerning the Modalities for the Popular Consultation of the East Timorese through Direct Ballot, New York, 5 May 1999, UN Doc A/53/951–S/1999/513, Annexes 1–3.

[59] J Gittings, ‘Countdown to Calamity’ The Guardian, (10 September 1999), <http://www.guardianunlimited.co.uk/Archive/Article/0,4273,3900438,00.html> .

[60] SC Res 1236, 7 May 1999. UNAMET is established by SC Res 1246, 11 June 1999.

[61] The Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59, 31 January 2000, makes it clear that ‘as early as February 1999, the militia had begun to intimidate people in the Territory’. Ibid [37].

[62] Indonesia requested this ‘extremely compressed timetable’; Mr Monteiro, Portugal, 4043rd Meeting of the Security Council, UN Doc S/PV.4043, 11 September 1999.

[63] D Brown, ‘Birth of a Nation’ The Guardian, (30 August 1999) <http://www.guardianunlimited.co.uk/Archive/Article/0,4273,389707600.html> .

[64] East Timor

-UNTAET Background <http://www.un.org/peace/etimor/UntaetB.htm> .

[65] Press Release, UN Doc SG/SM/7119; UN Doc SC/6722, 3 September 1999. Subsequent documents refer to the announcement of the vote on 4 September 1999.

[66] Mr Monteiro, Portugal, 4043rd Meeting of the Security Council, UN Doc S/PV.4043, 11 September 1999.

[67] Report of the Security Council Mission to Jakarta and Dili, UN Doc S/1999/976, 14 September 1999 [17].

[68] Ibid [19].

[69] A preliminary estimate made on 27 September is that some 500,000 people out of a pre-ballot population of 890,000 have been displaced; report of the Secretary-General on the Situation in East Timor, UN Doc S/1999/1024, 4 October 1999.

[70] A skeleton staff remained at the Australian consulate throughout.

[71] Xanana Gusmao, in meetings with the Security Council Mission to Jakarta and Dili, 9 and 12 September 1999, Report of the Security Council Mission to Jakarta and Dili, UN Doc S/1999/976.

[72] William Shakespeare, Much Ado About Nothing, Act V, scene III.

[73] Xanana Gusmao, The Guardian, (6 October 1999) <http://www.guardianunlimited.co.uk/Archive/Article/0,4273,3909537,00.html> .

[74] See letter from the Permanent Representative of Portugal to the President of the Security Council, 8 September 1999, UN Doc S/1999/955. Other states that similarly urged a Security Council response include Brazil, Ireland and Angola (on behalf of the Portuguese-speaking countries in Africa).

[75] Mr Monteiro, Portugal, 4043rd Meeting of the Security Council, UN Doc S/PV.4043, 11 September 1999.

[76] UN Charter, article 24 confers primary responsibility on the Security Council for the maintenance of international peace and security. It is not clear that this can be delegated by agreement in light of UN Charter, article 103. However, law and order in East Timor were deemed to be internal to Indonesia, despite its status as a non-self-governing territory and the holding of a UN-managed consultation.

[77] Australia voted for GA Res 3485, 12 December 1975 but abstained from voting in General Assembly resolutions on East Timor in 1976 and 1977. It voted against GA Res 33/39, 13 December 1978 explaining that the text of the Resolution ‘did not reflect a realistic appreciation of the situation in East Timor and no practical purpose was served by the Resolution’, cited C Chinkin, above n 55, 714, fn 16. Negotiations on the Timor Gap Treaty commenced in December 1978.

[78] Richard Holbrooke, United States, 4043rd Meeting of the Security Council, UN Doc S/PV.4043, 11 September 1999. The US voted in favour of SC Res 384, 22 December 1975 and abstained in SC Res 389, 22 April 1976.

[79] SC Res 1264, 15 September 1999.

[80] These include UNHCR, WHO, UNICEF, World Food Programme, the ICRC, NGOs long focused upon East Timor (Tapol, IPJET), Oxfam, Care, World Vision International, Catholic Relief Services, and other aid organisations.

[81] J Gittings, ‘Tearful Return for East Timor Hero’ The Guardian, (23 October 1999) <http://www.newsunlimited.co.uk/Indonesia/Story/0,2763,95071,00> .

[82] Report of the Secretary-General on the Situation in East Timor, UN Doc S/1999/1024, 4 October 1999 [27].

[83] SC Res 1272, 25 October 1999.

[84] Commission on Human Rights Res S-4/1, 27 September 1999, endorsed by the Economic and Social Council Decision 1999/293, 15 November 1999. The Commission met in Special Session from 23–27 September 1999. A consensus resolution with Indonesia’s agreement was not possible and the Resolution was adopted by 32 in favour, 12 opposed and 6 abstentions.

[85] Even the Commission on Human Rights does not seek accountability for the hundreds of thousands of deaths in East Timor before 1999. These appear to have been completely forgotten.

[86] The International Commission of Inquiry submitted its report in January 2000; Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59, 31 January 2000.

[87] Report of the Secretary-General of the United Nations, Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000 [72].

[88] On 17 December 1999 more than $500 million was pledged at an international donor conference organised by the World Bank in Tokyo; Report of the Secretary-General of the United Nations, Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000 [12]. Detailed work is being undertaken on arrangements for priorities and planning for financing reconstruction programs.

[89] Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59, 31 January 2000 [145].

[90] A similar point has been made about Bosnia; D Chandler, Faking Democracy after Dayton (1999).

[91] The NCC comprises 15 members: seven representatives from CNRT, one from the Catholic Church and three representatives of political groups outside CNRT which supported autonomy. UNTAET has four seats on NCC, including the Transitional Administrator, as chairman; Report of the Secretary-General of the United Nations, Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000 [4].

[92 ] SC Res 1272, 25 October 1999 [8]. ‘A key objective is to ensure that the East Timorese themselves become the major stakeholders in their own system of governance and public administration …’; Report of the Secretary-General of the United Nations, Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000 [41].

[93] Xanana Gusmao, ABC News Online, Australia, 18 November 1999 <

http://www.abc.net.au/news/1999/11/item/19991118073656_1.htm> (this site is no longer online).

[94] C Cleary, ‘Too Much Weaponry Not Enough School Desks’ Irish Times, (18 January 2000).

[95] The four main languages used by the East Timorese are Portuguese, Bahasa, Tetum and English. There are also many local languages.

[96] K Richburg, ‘The Business of Rebuilding Entrepreneurs Follow the Relief Workers Into East Timor’ Washington Post Foreign Service, (3 January 2000), A13.

[97] Attributed to a CNRT source; C Cleary, above n 94.

[98] Report of the Secretary-General of the United Nations, Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000 [15]–[28].

[99] For a traditional account of the acquisition of territory in international law see R Jennings, The Acquisition of Territory in International Law (1962).

[100] P Mathew, ‘Lest We Forget: Australia's Policy on East Timorese Asylum Seekers’ (1999) 11 International Journal of Refugee Law 7.

[101] In the UK in August 1996 four women charged with criminal damage to military aircraft were acquitted after they admitted causing the damage but argued their actions to be justified because they were acting to prevent further crimes — genocide in East Timor; ‘Plane Wreckers Claim Moral as well as Legal Victory’ The Guardian (7 August 1996) 5.

[102] Horta v The Commonwealth [1994] HCA 32; (1994) 181 CLR 183. The case was dismissed.

[103] The doctrine of uti possidetis (the maintenance of pre-existing international boundaries) prevails; Case Concerning Frontier Dispute (Burkina Faso v Republic of Mali) [1986] ICJ Rep 554, 566–7.

[104] This view limits the right to self-determination to peoples subject to European colonial rule or racist domination and as a ‘once off’ matter. See R Higgins, Problems and Process: International Law and How We Use It (1994) 111. The disintegration of European states in the 1990s has shown the limitations of this understanding. However East Timor comes within the traditional understanding and can therefore be distinguished from other peoples within present-day Indonesia.

[105] UNTAET and Australia signed a Memorandum of Understanding, 11 February 2000 that prepares the groundwork for a legal arrangement between East Timor and Australia, based on the Timor Gap Treaty <http://www.un.org/peace/etimor/news/News11.html> .

[106] United Nations Convention on the Law of the Sea, 10 December 1982, reprinted (1982) 21 ILM 1261.


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