Lecturer in Public International Law, School of Law, University of Glasgow; Visiting Fellow, Human Rights Programme, Harvard Law School.Nottingham University Student Human Rights Law Centre News Letter, July 1999, Volume 4, Number 2
Joint conferences with political scientists are often troubling affairs for
international lawyers -and never more so than where the subject matter is that
thorny perennial, the right of self-determination of peoples. Reasons for
scepticism abound. On the one hand, where a people is consistently denied the
right of self-determination, the persistent assertion of lofty (and
unenforceable) principles on the part of the international lawyer can do little
more than emphasise the irrelevance of the discipline to the 'real world' of
international relations. On the other, once the deal is struck and incremental
moves towards a peace settlement are afoot, the scrutiny of the international
lawyer may become unwelcome.
Who could have dared to hope, even a year ago, that
a post-Suharto government in Indonesia would be prepared to offer East Timor a
vote on autonomy, let alone independence? To quibble over whether this historic
opportunity complies with the finer details of international law practice seems
excessively formalistic - if not downright ungrateful. As Leah Brilmayer has
pointed out, international lawyers tend to come to ethnic conflict armed with
entitlements and principles: when what is truly required are toleration,
forgiveness and political compromise.2
Yet it is the contention of this short paper that principles and entitlements
should not merely be the concern of the international lawyer. Accordingly, this
paper will adopt the approach of the unreconstructed international lawyer and
offer a formal analysis of the current peace process in the light of the
international law on self-determination of peoples. It will be shown that
despite its notorious ambivalence, the right of self-determination does furnish
the East Timorese with a core of procedural and substantive entitlements with
which the August popular consultation manifestly fails to comply. In short, it
will be argued that, despite the rhetoric, the United Nations-brokered peace
plan for East Timor falls short of the standards required for an exercise of
self-determination under international law.
The legal basis of East Timor's right to self-determination
In marked contrast to the political machinations which have afflicted its
struggle for independence the legal basis for East Timor's right of
self-determination is clear. As is well known, the right of self-determination
in international law first emerged in the decolonisation period of the 1960s.
The historic Declaration on the Granting of Independence to Colonial Countries
and Peoples (the Colonial Declaration) famously set forth the right in universal
terms. Paragraph 2 thus provides that: "All peoples have the right to
self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
The reference to "all peoples" is, however, misleading.4 Paragaph
2 must be read in conjunction with Paragraph 6 which outlaws any attempt aimed
at the "...partial or total disruption ... of the territorial integrity of a
country....".5 Its effect was to exclude those peoples trapped inside
the border of existing states and confine the fledgling right of
self-determination to the colonial cause.6
Nearly forty years on, the international law waters on the scope of
self-determination remain remarkably muddied. To what extent does the right
exist beyond the colonial context? Does it embrace a right of secession? And if
so, under what circumstances?
This post-colonial dialogue, however, need not concern us. The legal origins
of East Timor's right of self-determination lie not in its relationship with
Indonesia (secession)7 but with Portugal
(decolonisation).8 As a Portuguese colony from 1586 and a United
Nations designated non-self-governing territory since 1960, East Timor fell to
be decolonised under the law on self-determination.9 Only Indonesia
clings to the discredited view that the decision of the 'Regional Popular
Assembly' in 1976 - whereby East Timor was deemed to have chosen freely to
integrate with Indonesia10 - complied with the strictures of the
legal norms.11 Even Australia, which recognised Indonesia's
annexation of East Timor did so, not on the basis that the Indonesian annexation
amounted to the exercise of East Timor's right of self-determination but rather
because it considered that the act of recognition was without prejudice to the
realisation of East Timor's right to self-determination sometime in the
future.12 Thus, as the International Court of Justice in the East Timor case
seemed at pains to stress "... the Territory of East Timor remains a
non-self-governing territory and its people has the right to self-
It can readily be established then that the legal basis for East Timor's
self-determination lies in the law relating to decolonisation and its continuing
status as a non-self-governing territory. But why does that matter? What purpose
does it serve to establish that East Timor should be characterised as a case of
decolonisation rather than secession?
It is submitted that establishing the correct legal basis for East Timor's
right of self-determination is not simply a matter of academic interest but
rather entails two significant practical consequences. First and foremost, as
exemplified by the recent Kosovar crisis, the existence of a right of secession
- even in situations involving gross human rights abuse - remains highly
debatable. Although obiter dicta from both the African Commission on Human and
Peoples' Rights14 and the Supreme Court of Canada15
suggests the existence of a limited right of secession in cases of severe human
rights abuse16 or denial of internal self-determination17
supporting state practice is severely wanting. It is surely significant that at
the height of an armed military intervention, amidst allegations of genocide,
the international community remained resolutely opposed to the break up of the
Federal Republic of Yugoslavia through a Kosovar secession.18 Thus
any claim of East Timor to secede from Indonesia on the basis of human rights
abuse - even of genocidal proportions B might encounter an initial obstacle in
establishing that such a right does in fact exist.
Secondly, and perhaps more crucially, identifying the correct legal basis is
relevant to ascertaining the nature of the relationship between East Timor's
right of self-determination and any Indonesian offer of autonomy. Outside the
colonial context the general trend in self-determination doctrine is to posit
external self-determination as conditional on the absence of internal
self-determination. In other words, the weaker the arrangements for internal
self-determination of a people within a state, the stronger that people's claim
to external self-determination. This is the logic of the 1970 Declaration of
Principles of International law concerning Friendly Relations Among States in
Accordance with the Charter of the United Nations (Declaration concerning
Friendly Relations) which, it is argued,19 makes a state's right to territorial
integrity conditional on possessing "... a government representing the whole
people belonging to the territory without distinction as to race, creed or
Accordingly, the effect of a grant of autonomy or devolution outside the
colonial context - for example, in Quebec or in Scotland - is to lessen the case
for independence, at least in international legal terms.21 This
elevation of internal over external self-determination is unsurprising and does
little more than reflect the traditional allegiance of the international legal
order to the territorial integrity of existing states. But from a
self-determination perspective, it marks a significant departure from the rules
applicable in the colonial context which - as we shall see - require a free
choice which includes the option of external self-determination (regardless of
the arrangements for internal self-determination). Identifying colonialism as
the proper legal basis for East Timor's right of self-determination is thus
important because it precludes the possibility of arguing that in the absence of
a proper free choice on independence, an Indonesian offer of autonomy could
weaken - or even satisfy - the Timorese right to self-determination.
The content of the right of self-determination
Having established that East Timor remains a non-self-governing territory
with the right of self- determination does not of course exhaust the scope for
legal enquiry. The question arises as to what this means in practice. What
entitlements are conferred on a people such as the East Timorese as
beneficiaries of the right of self-determination?
The received wisdom is to dismiss the right of self-determination as
hopelessly ill-defined. Thus at an international meeting of experts in 1989 it
was observed that "the debate is no longer whether peoples' rights are
recognised by international law ... it is about their content."22
However, although beyond the colonial context self-determination suffers from a
high degree of normative confusion, it is submitted that the rules relating to
the decolonisation of non-self-governing territories such as East Timor are
relatively settled. In elucidating this content, it is instructive to
distinguish between its procedural and substantive aspects.
Self-determination: The process
Consider the standard definition of self-determination and it is clear that
it is depicted as a procedural right: "the right of all peoples freely to
determine their political status and freely to pursue their economic, social and
cultural development."23 Thus the most fundamental right conferred on
the East Timorese under the law of self- determination is the right to determine
freely the political destiny of East Timor. Its essence is free choice. Earlier
formulations of the law that emphasised the end (independent statehood)24 rather
than the means (free choice) were quickly superseded. This is clear from the
1970 Declaration concerning Friendly Relations which provides that:
"the establishment of a sovereign and independent State, the free association
or integration ... or the emergence into any other political status freely
determined by a people constitute modes of implementing the right of
self-determination by that people."25
Similarly, the International Court of Justice in the Western Sahara Case
concluded, after surveying the provisions of the 1960 Declaration that they "...
confirm and emphasise that the application of a right of self-determination
requires a free and genuine expression of the will of the peoples
But if it is clear that the right of self-determination confers on the East
Timorese a right to a free choice, questions abound as to how that free choice
is to be ascertained. What, for example, amounts to a free choice? Does it
require a referendum or a plebiscite to be held? And if so, how widely should
the referendum questions be framed? Must they, for example, include the option
For the self-determination enthusiast, these questions are nothing new. It
was precisely such issues of process which dogged attempts to decolonise the
Western Sahara and led the General Assembly to request an Advisory Opinion from
the International Court of Justice in 1975. Although the Court was unequivocal
that self-determination requires a free expression of the will of the people, it
was less than illuminating on the crucial question of how that free will is to
be ascertained. Indeed, in response to Spanish arguments,27 the Court
appeared deliberately to leave the question open as a matter for the discretion
of the General Assembly.28
Nevertheless, it is clear that the Court did not intend this discretion to be
unfettered. In the first place, any forms and procedures adopted for the
exercise of self-determination must be such as to ensure "a free and genuine
expression of the will of the people."29 In this regard, the
International Court of Justice expressly endorsed the procedures laid down by
Principle VII of United Nations Resolution 1541 - i.e. "informed and democratic
processes" - as giving effect to the "essential feature" of the right of
self-determination.30 Moreover, the Court defined self-determination
as "the need to pay regard to the freely expressed will of the
people."31 This requirement of consulting with the people had only
been dispensed with where "a certain population did not constitute a people" or
where it was deemed unnecessary "in view of special circumstances".32
Taking the Western Sahara Opinion as a whole, it is hard to avoid the
conclusion that, in the absence of special circumstances, the free choice of a
people is to be ascertained through a free and fair referendum or plebiscite.
Moreover, given the substantial body of United Nations practice during the
decolonisation period which favoured independent statehood as the only true
self-determination outcome,33 it is submitted that such a referendum
must include the option of independent statehood.
Self-determination: The substance
Whilst the standard definition depicts the right of self-determination in
purely procedural terms it is clear that this concept is not devoid of a
substantive content. Thus, for example, implicit in the standard injunction that
it is 'for the people to determine the destiny of its territory' is the
recognition of a title to territory on the part of that people. More explicitly,
various international instruments on self-determination make specific provision
for substantive rights. For the purpose of assessing the rights of the East
Timorese, the following is a non-exhaustive list of substantive entitlements
conferred under the law of self-determination: a) the right to exist as a people
(territorially); b) the right to territorial integrity;34 c) the
right to permanent sovereignty over natural resources;35 d) the right
to demographic integrity; e) the right to cultural integrity and
development;36 f) the right to economic and social
development;37 and g) the right to internal
Process, Substance and the East Timorese
We have thus far established that under the law of self-determination, the
East Timorese are entitled to a number of substantive rights in addition to the
fundamental right to exercise a free choice over their political destiny. A
final question which is crucial to understanding the extent of Timorese
entitlements concerns the relationship between these two aspects of the right.
It is submitted that the two are mutually dependent. In the first place, the
ability to exercise the procedural aspect of self-determination is entirely
dependent on respect for its substantive content. Put simply, without protection
for core entitlements such as territory or natural resources the right to
self-determination would become devoid of any meaningful content.39
It follows then that compliance with the right of self-determination requires
respect for both the substantive as well as the procedural entitlements.
For the East Timorese, this is highly significant. Its effect is to preclude
a State that is engaged in activities which threaten the core elements of the
right of self-determination - for example, natural resources - from arguing that
it is nonetheless in compliance with the right because it supports some future
act of free choice by the people. The point is, perhaps, an obvious one and
would barely be worth making were it not for the persistence of contrary state
practice. The international law definition of self-determination as an act of
political free choice has encouraged an exclusive focus on the procedural
aspects as exhaustive of its legal content. A spectacular example is to be found
in Australia's pleadings on the merits in the East Timor case. In response to
Portugal's arguments that the Australia-Indonesia Timor Gap Treaty40
infringed upon East Timor's right of self-determination, Australia argued that
its conclusion and implementation did not:
"... hinder any act of self-determination of the people of East Timor ....
Whatever the choice made, the conclusion of the Treaty does not prevent the
exercise at some later date of the right of the people of East Timor freely to
choose their future political status in accordance with arrangements approved by
This argument is clearly misconceived. It portrays self-determination as no
more than the right of a people to make a free, political choice and ignores its
core content of substantive entitlements (in this instance, the right of a
people to permanent sovereignty over natural resources). Once it is recognised
that self-determination entails substantive entitlements beyond the basic right
to exercise free choice, such arguments are rendered logically untenable.
In the second place, the substantive content is in turn safeguarded by the
self-determination process. Thus, once it is recognised that substantive rights
form an integral core of the right of self-determination, it follows that
pending the realisation of self-determination through a fair and free
referendum, these rights cannot be impaired or alienated. In other words, the
process of exercising a free choice serves as a threshold below which any
improper restriction or alienation of a people's substantive rights must be
regarded as unlawful.
Again, for the East Timorese this is significant. It follows that if the
August ballot fails to comply with the procedural requirements regarding "a free
choice," any subsequent attempt by the Indonesians to alienate or impair
Timorese natural resources or territorial integrity42 would be - or
remains - unlawful. It is thus to the issue of the ballot - and whether it is
'self-determination compliant' - that we now turn.
The East Timor Accords: the basic framework
5 May 1999 witnessed the conclusion of three Agreements (hereinafter the East
Timor Accords) which together have been hailed for providing an historic
opportunity to provide a "just, comprehensive and internationally acceptable
solution" to the question of East Timor.43 The first Agreement
(General Agreement)44 - between the governments of Portugal and
Indonesia - sets forth the lynchpin principle: to request the Secretary-General
to conduct a "popular consultation" for the purpose of ascertaining whether the
East Timorese people (both inside and outside the territory) accept or reject a
proposed constitutional framework for special autonomy within the Republic of
Indonesia.45 To assist in this task, the Secretary-General is
requested to establish an "appropriate" United Nations mission.46 The
United Nations Assistance Mission for East Timor (UNAMET) was duly established
by the Security Council on 11 June 1999.47
The two supplementary Agreements are tripartite - between the governments of
Indonesia and Portugal and the United Nations - and deal with the modalities for
the popular consultation (Modalities Agreement)48 and the security
arrangements (Security Agreement).49 The Modalities Agreement
provides inter alia for: a)the date for the consultation; b) the question to be
put before the voters; c) entitlement to vote; d) the schedule for the
consultation process; and e) the operational phases of the
consultation.50 The Security Agreement lays down a second lynchpin
principle: that "a secure environment devoid of violence or other forms of
intimidation is a prerequisite for the holding of a fair and free
ballot".51 Curiously, however, given their notorious reputation for
human rights abuses, responsibility for securing this environment, and for the
general maintenance of law and order,52lies with the "appropriate"
Indonesian Security authorities.53
As is well known, the ballot on special autonomy for East Timor was
originally scheduled for Sunday 8 August 1999.54 Crucially, however,
this date was always subject to Article 3 of the Security Agreement. This
provides that, prior to the start of registration of voters, the
Secretary-General "shall ascertain, based on the objective evaluation of the
United Nations mission, that the necessary security situation exists for the
peaceful implementation of the consultation process."55
Clearly, where the "necessary security situation" is lacking, the
Secretary-General is empowered to decide that the consultation process will not
proceed. Guidance as to what exactly amounts to "the necessary security
situation" is provided in the accompanying Secretary-General's
report.56 Thus the main elements are:
"... the bringing of armed civilian groups under strict control and the
prompt arrest and prosecution of those who incite or threaten to use violence, a
ban on rallies by armed groups while ensuring the freedom of association and
expression of all political forces and tendencies, the redeployment of
Indonesian military forces and the immediate institution of a process of laying
down of arms by all armed groups to be completed well in advance of the holding
of the ballot."57
On 22 June 1999, after reviewing the security situation in East Timor, the
Secretary-General determined that he was unable to certify that the necessary
conditions existed to begin the operational phase of the consultation
process.58Expressing the hope that the security situation would
improve, he informed the Security Council of his decision to postpone the
determination required under Article 3 of the Security Agreement for a period of
three weeks. Indonesia and Portugal agreed to a two week postponement of the
On 14 July 1999 the Secretary-General determined that, due to widespread
violence and intimidation in East Timor, he was still unable to attest to the
necessary security conditions. Nevertheless, 'undeterred by the intimidation',
he decided that the registration of voters should begin.60 The
security situation - and the fate of the ballot - thus remains under review.
Self-determination vs. Peace Process
At time of writing, the violence in East Timor continues unabated. There are
reports on a daily basis of threats and attacks by the militias against
pro-independence East Timorese.61 Internal population displacement is
widespread with all its attendant (and intended?) consequences for voter
registration.62 The provision of humanitarian aid has been disrupted
and UNAMET personnel and humanitarian convoys have been targeted by the
militias.63 There are also reports of violence on the part of
Falintil.64 In short, the situation in East Timor manifestly fails to meet the
litmus test of a "secure environment devoid of violence or other forms of
intimidation".65 The Secretary-General's decision to postpone the
ballot must thus be considered beyond reproach.
But if the question for the UN Secretary-General is whether the security
situation in East Timor lives up to the terms of the East Timor Accords, for the
international lawyer it must be whether the East Timor Accords live up to the
terms of the international law. In other words: does the "popular consultation"
for special autonomy in East Timor comply with the requirements of the right of
As suggested at the outset, the question may be an unpopular one. "Peace
processes" are much in vogue. From Northern Ireland to the Middle East, the
"peace process" has assumed both political centre stage and the international
moral high ground. Yet for peoples struggling for self-determination the onset
of a peace process may be a paradox of sorts. On the one hand, the peace process
may work hand in hand with the legal norms leading to the realisation of a
people's right of self-determination.66On the other, it may be
invoked to trump rather than translate the legal framework. Thus once a peace
process is underway, reliance on (entrenched) legal entitlements may seem
contrary to its spirit which tends to disavow pre-determined outcomes in favour
of political compromise and negotiated agreement. Similarly, the peace process
may serve (unfairly) to equalise the position of the parties, assuming a level
playing field and ignoring prior illegalities as much as prior entitlements. For
example, recent Security Council resolutions67 endorsing the East
Timor peace process significantly omit earlier injunctions in favour of East
Timorese self-determination and Indonesian troop withdrawal.68
Finally there is the danger of allowing politics to masquerade as law - that
whatever is negotiated under the peace process will be viewed as the realisation
of legal rights. In this regard, it is already possible to detect a marked
proclivity on the part of the international community to view the August ballot,
come what may, as the exercise of East Timor's right of self-determination. In a
recent interview, for example, the Secretary-General specifically referred to
the popular consultation as a 'self-determination ballot.'69 The
danger of conflating law with politics is that it ignores the possibility that
the peace process may fall short of realising East Timorese rights under
It falls then to the international lawyer to disentangle the law from the
politics. It will be argued that the UN-brokered peace deal for East Timor fails
to live up to the international legal rules on self-determination on one
principal and fatal ground: the lack of a free choice. Additional comments will
then be offered on voter eligibility and some aspects of the constitutional
framework for autonomy.
The absence of a free choice
Described by the International Court of Justice in the Western Sahara case as
the "essential feature"70 of the right of self-determination it is
clear that in order to be meaningful the designation "free" must relate to both
the range of choices and the conditions under which those choices are made.
The question of the range of choices has been touched on earlier. General
Assembly Resolution 154171 provides for three specific options:
independent statehood, free association or integration.72 The 1970
Declaration concerning Friendly Relations reiterates these options and adds a
fourth: "or the emergence into any other political status freely determined by a
people."73 By contrast, the question to be put to the East Timorese
in the August ballot appears unduly circumscribed and weighted in favour of one
particular option. According to the Modalities Agreement, the question that the
Secretary-General will put to the voters is:74
"Do you accept the proposed
special autonomy for East Timor -----
within the Unitary State of
the Republic of Indonesia?"
"Do you reject the proposed
special autonomy for East ----- REJECT
Timor, leading to East Timor's
separation from Indonesia?"
Thus, rather than present the East Timorese with a range of positive choices
in neutral terms - i.e. independent statehood, free association, special
autonomy or integration - the ballot question effectively offers a single choice
(special autonomy) on a "take-it-or-leave-it" basis. Independent statehood is
offered not as a positive option in its own right but rather makes a cameo
appearance as "separation from Indonesia" and as a negative consequence of
rejecting "special autonomy". It is as surprising as it is disappointing that
the United Nations should sign up to an Agreement where the positive desire for
independent statehood of the vast majority of East Timorese is expressed in the
language of rejection. Moreover, it is entirely at odds with the United Nations'
own practice which, as we have seen, has traditionally favoured the option of
independent statehood. As for those East Timorese who support the status quo,
transitional autonomy or any other option, there is effective
Of even more concern than the range of choices are the conditions under which
those choices are to be exercised. It is axiomatic that the exercise of the
right of self-determination requires conditions conducive to a free and fair
vote.75 Prima facie, this principle is recognised by the Agreements.
As we have seen, Article 1 of the Security Agreement, specifies as a
prerequisite for the holding of the ballot an environment "devoid of violence or
intimidation".76 The express purpose of the Secretary-General in
issuing guidelines to the parties regarding conditions for the popular
consultation was to set forth the "main elements" necessary to remove the threat
of armed violence and ensure freedom of expression and political
association.77 In addition, UNAMET has been specifically mandated to
monitor "the fairness of the political environment" and to ensure "the freedom
of all political and other non-governmental organisations to carry out their
These provisions notwithstanding, it is submitted that the goal of Article 1
is likely to be thwarted not only by the (external) situation on the ground but
by two failings integral to the Agreements. First, there is no obligation for
the Indonesian government to withdraw or redeploy its military forces during the
operational phases of the popular consultation or during the vote. Although
re-deployment of Indonesian forces is listed by the Secretary-General as one of
the main elements of the "necessary security situation",79 there is
no corresponding treaty commitment to this effect. In the case of Namibia, by
contrast, the Security Council-endorsed settlement plan finally accepted by
South Africa in 1988, provided for a reduction in South African Defence Forces
to 1500 troops who were to be restricted to base in a civilian capacity. The
withdrawal of SADF troops began immediately with the start of the implementation
of the settlement plan on 1 April 1989 - seven months in advance of the Namibian
Secondly, as noted earlier, Article 1 paradoxically states that
responsibility for the security environment lies, not with UNAMET but with the
"Indonesian security authorities." The Indonesian military's notoriety for human
rights atrocities against the East Timorese is matched only by its flagrantly
pro-integrationist political agenda. There is a wealth of evidence to support
the widespread claims that it is the Indonesian military that is responsible for
the pro-integration militias who are currently wreaking such havoc in the
territory.80 To assert the need for a security situation "devoid of
violence and intimidation" and then assign responsibility for securing that
environment to the Indonesian security authorities is positively oxymoronic.
Moreover, it is out of step with United Nations self-determination practice
which favours the deployment of a United Nations peace-keeping force to monitor
and ensure the security environment. In Namibia, for example, UNTAG included a
4,500 strong peace keeping force whose duties extended to monitoring the
reduction and restriction of the SADF, disarming the command structures of the
militia forces, and monitoring the confinement of arms and
ammunition.81 The recent attacks on UNAMET in East Timor merely serve
to highlight a more general failing. It is unimaginable that the United Nations
would have agreed to elections in Namibia in the absence a peace-keeping force,
much less assigned a security role to the South African security forces. Is
there a principled basis for distinguishing that situation from the one in East
It is clear that neither the range of choices nor the conditions under which
they are to be made satisfy the requirement of a "free" choice. As such, the
proposed August ballot fails to comply with the most fundamental requirement of
the right of self-determination under international law.
Deconstructing the voters: some observations
A second potential area of difficulty with the Accords relates to the
criteria for voter eligibility. This is a an old chestnut: who is the 'self' for
the purpose of exercising the right of self-determination? The standard response
that self-determination is a right belonging to 'peoples'82 does
little more than beg the question. The problem was essentially side stepped
during the decolonisation period by the adoption of a territorial rather than an
ethnic criterion. Thus the 'people' was deemed simply to be the population of a
colonial unit, territorially defined and (typically) ethnically
Unsurprisingly, it is this territorial rather than ethnic definition of a
"people" which is adopted by the East Timor Accords. Although Article 1 of the
General Agreement prima facie suggests ethnicity - "the East Timorese people,
both inside and outside the territory"84 - it must be read in
conjunction with the Modalities Agreement. This provides that the persons
eligible to vote in the popular consultation are aged 17 or above and a) were
born in East Timor; or b) were born outside East Timor but with at least one
parent having been born in East Timor; or c) whose spouse falls under either of
a) or b) above.85 Clearly, the common link is the fact of (someone)
being born in the territory of East Timor rather than any ethnic yardstick of
East Timorese identity. The significance of this provision becomes evident if we
consider two groups of potential voters whose respective absence and presence
could substantially affect the outcome of the ballot: the East Timorese
refugees86 and the Indonesian settlers.87
First, as regards the refugees, the reference to East Timorese "both inside
and outside the territory" in Article 1 of the General Agreement signals the
laudable intention of the parties to include the East Timorese diaspora in the
consultation process. This is confirmed in Part E of the Modalities Agreement
which provides for registration of voters "both inside and outside East
Timor".88 Thus special registration centres have been opened in
specified cities in Indonesia such as Jakarta, Surabaya and Ujung Pandang, as
well as in other countries which have traditionally hosted East Timorese
refugees: Sydney, Darwin, Perth, Macau, Melbourne, Lisbon, Maputo and New
York.89 Thus the East Timorese diaspora - unlike its Palestinian
counterpart - is to have its say.
Yet to accord absentee voter rights to East Timorese refugees "abroad" merely
glosses over a significant human rights failing of the Agreements: the lack of
any provision guaranteeing the right of the East Timorese refugees to return
home. In Namibia, for example, the UN settlement plan provided that one of the
conditions of a free and fair election was the repatriation of all Namibian
refugees prior to elections.90 Suitable entry points were designated
and more than 134,000 Namibian refugees had returned home within a month of the
start of the registration process.91 Similarly, the Implementation
Plan for the Western Sahara, provides for the return of all refugees wishing to
do so, prior to the holding of the referendum.92 To deny members of a
self-determination unit the right to return constitutes a violation not only of
individual human rights but of the collective right of self-determination.
As regards the Indonesian settlers, the position is mixed. As we have seen,
voter eligibility turns on Timorese birth. The effect then is to exclude from
the ballot, settlers and other Indonesians who were born outside and have moved
to the territory since the start of the Indonesian occupation in
As East Timor is both a self-determination unit and an occupied
territory,94 it is manifestly illegal for Indonesia to engage in
policies of transmigration or settlement of East Timor.95 It should
be clear that such policies violate both the substantive and procedural aspects
of self-determination. On the one hand, an influx of settlers is likely to
threaten such core elements as territory, natural resources, and culture. On the
other, settlers may be specifically deployed as a means of altering the
demographic balance with a view to distorting the outcome of a 'free choice' by
a people at the ballot box. Given both the illegal purpose and status of the
Indonesian settlers in East Timor under international law, it is entirely
correct that they be precluded from voting.
However, it is clear that two groups of Indonesians will be eligible to vote:
first generation settlers who have been born in East Timor and those who have
married East Timorese (or first generation settlers). This is problematic on two
grounds. First, the provision regarding spousal voting rights is open to abuse.
As pointed out in a recent edition of Timor Link,96 the Modalities
Agreement provides no minimum limit on the duration of the marriage prior to the
ballot. This opens up the possibility of a Timorese 'green card' scenario
whereby marriage will may be used either consensually or coercively to secure
votes for the otherwise unentitled. Secondly, to allow Indonesian first
generation settlers a say in the ballot constitutes a disappointing precedent
for self-determination situations involving illegal policies of population
transfer. Put simply, it is the East Timorese equivalent of providing first
generation Israeli settlers with a vote over the political destiny of the
Palestinians in the West Bank and Gaza Strip. The objections are manifest.
It can thus be concluded that the United Nations brokered popular
consultation proposal fails to comply with the international law rules on
self-determination.97 But does it matter? Is such an analysis not susceptible to
the charge of legal utopiansim - or 'self -determination fanaticism' - which
does as little to advance peace in the region as it does to alleviate the plight
of the East Timorese? In short, is a flawed process not better than no process
It is submitted that compliance with the international legal rules is
important on at least two grounds. First and more generally, it is only the
process which can legitimise the outcome. The processes which are enshrined in
the international legal rules are designed to ensure that the act of
self-determination reflects the genuine and free will of the people. Where the
process is abused, any outcome will be open to dispute by disaffected parties
and is thus unlikely to provide the basis for a just and lasting peace.
Secondly, for the East Timorese, the consequences of accepting the autonomy
package are so far-reaching that it is simply not acceptable that such a
momentous decision be taken under conditions which fall short of international
legal standards. Thus, Article 5 of the General Agreement provides that in the
event that the Secretary-General determines that the East Timorese vote for
" ... the Government of Portugal shall initiate within the United Nations the
procedures necessary for the removal of East Timor from the list of
Non-Self-Governing Territories of the General Assembly and the deletion of the
question of East Timor from the agendas of the Security Council and the General
Curiously, the preamble to the General Agreement notes the Portuguese
position that autonomy should only be transitional "not requiring recognition of
Indonesian sovereignty over East Timor or the removal of East Timor from the
list of Non-Self-Governing Territories."99 However, Article 5 (which
is binding on Portugal) implicitly endorses the Indonesian position that the
autonomy is to be implemented as an 'end solution' with recognition of
Indonesian sovereignty over East Timor.100
This is confirmed by the Constitutional Framework101 which makes
it clear that sovereignty over natural resources is to vest in the Indonesians.
Article 8 provides that natural resources other than those "which are considered
to be strategic or vital under national laws" are to be under the control of the
government of the Special Autonomous Region of East Timor (SARET). The clear
implication of allocating East Timorese mere control over natural resources is
that they are to be divested of the sovereign rights which they currently hold
as beneficiaries of the right of self-determination. Moreover, whether the
resources are deemed (by the Indonesians) to be 'vital' or 'strategic' ( oil for
example?) and thus outside the control of the East Timorese is entirely within
the discretion of Indonesia. As we have seen, in the absence of a proper act of
free choice by the East Timorese any attempt to alienate substantive elements of
the right of self-determination, such as title over natural resources, would be
In conclusion, the consequence of a pro-autonomy vote would be to denude the
East Timorese of their existing rights under international law. Indeed, the
Constitutional Framework goes as far as to offer a new definition of East
Timorese identity which includes any person who has resided permanently in East
Timor for five years, effective from the date the Agreement entered into
force.102 With the entry into force of this provision the
twenty-four-year Indonesian quest to erase the East Timorese people from the
international legal landscape would finally be complete.
1.This is an expanded version of a paper presented at a
conference at the University of Nottingham in May 1999, East Timor in
Transition: Sovereignty, Self-Determination and Human Rights. I benefited
greatly from listening to the conference speakers. I would like to thank Dr.
Peter Carey for providing me with statistics on settlers and Dr. Eva-Lotta
Hedman for supreme editorial patience. I would also like to thank David Goldberg
and Graeme Laurie.
2. Brilmayer, A The Institutional and Instrumental Value
of [email protected], in Wippman (ed.) International Law and Ethnic Conflict (Cornell
University Press, 1998), 58 at 76.
3. United Nations General Assembly
Resolution 1514 (XV), 1960.
4. This point is made by Emerson ,
"Self-Determination", 65 American Journal of International Law (1971), 459.
6. On this point see, Pomerance, Self-determination in Law and
Practice, (Nijhoff, 1982) at 18-19. See also the separate opinion of Judge
Petren in the Western Sahara (Advisory Opinion), I.C.J. Reports (1975), 12 at
7. See Cassese, Self-determination of Peoples: A Legal Reappraisal,
(Cambridge University Press, 1995) at 226.
8. See for discussion, Simpson,
"The Politics of Self-determination in the Case Concerning East Timor", in
CIIR/IPJET, International Law and the Question of East Timor (CIIR/IPJET, 1995),
251 at 258.
9. In the Namibia case, the ICJ held that "the subsequent
development of international law in regard to non-self governing territories as
enshrined in the Charter of the United Nations made the principle of
self-determination applicable to all of them." Legal Consequences for States of
the Continued Presence of South Africa in Namibia/South West Africa
notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports (1971) at
31.United Nations General Assembly Resolution 1541 (XV), 1960, Principles which
should guide Members in determining whether or not an obligation exists to
transmit the information called for under Article 73(e) of the Charter, lays
down some rules and procedures.
10. 31 May 1976. For the Indonesian and
Portuguese positions on this see, Cassese, supra, note 7, at 225.
11. For an
analysis of why not, see Clark, "The decolonisation of East Timor and the United
Nations norms on self-determination and aggression", in CIIR/IJET, supra, note
8, at 74-80.
13. Case concerning East Timor (Portugal v.
Australia), I.C.J. Reports (1995) at 103, para. 31.
14. Katangese Peoples'
Congress v. Zaire, Communication No. 75/92, 3(1) International Human Rights
Reports (1996) at 136 para. 6.
15. Reference Re. Secession of Quebec,
Supreme Court of Canada, 37 International Legal Materials (1998) 1340, para.
16. Katangese Peoples' Congress v. Zaire, supra, note 14.
Reference Re. Secession of Quebec, supra, note 15, paras. 134 and 138. The Court
was, however, equivocal and stressed that it was unclear whether this was
actually established law, ibid, para. 135.
18. See, for example, United
Nations Security Council Resolution 1239 (1999), 14 May 1999.
19. See, for
example, Buchheit, Secession; The Legitimacy of Self-Determination, (Yale
University Press, 1978).
20. United Nations General Assembly Resolution 2625
(XXV), 1970, The Declaration of Principles of International Law concerning
Friendly Relations Among States in Accordance with the Charter of the United
Nations. This interpretation finds equivocal support from the Supreme Court of
Canada. See Reference Re. Secession of Quebec, supra, note 15, para. 134.
21. Of course, in political terms the very opposite may be true.
22.UNESCO International Meeting of Experts on the Further Study of the
Concept of the Rights of Peoples, Paris (1989), para. 19 (on file with author).
23.See, for example, United Nations General Assembly Resolution 1514, supra,
note 3, para. 2; International Covenant on Civil and Political Rights, United
Nations General Assembly Resolution 2200A (XXI), 1966, Article 1.
Paragraph 5 of United Nations General Assembly Resolution 1514, supra, note 3,
provides that : "Immediate steps shall be taken in Trust or Non-Self-Governing
Territories ...in order to enable them to enjoy complete independence and
freedom" (my emphasis).
25. United Nations General Assembly Resolution 2625
(XXV), supra, note 20.
26. Western Sahara (Advisory Opinion), supra, note 6,
27. Ibid, para. 48.
28. "The right of self-determination
leaves to the General Assembly a measure of discretion as to the forms and
procedures to be adopted in the exercise of the right of self-determination" (my
emphasis), ibid, para. 71.
29. Ibid, para. 55.
30. Ibid, para. 57.
31. Ibid, para. 59.
33. This is reflected in United
Nations General Assembly Resolution 1541 (XV), supra, note 9, which only imposed
a requirement of "informed and democratic processes" on colonies which sought
free association or integration. For those opting for independent statehood
there was no procedural safeguard, Principles VII and IX.
34. United Nations
General Assembly Resolution 1514 (XV), supra, note 3, para. 6.
Nations General Assembly Resolution 1803 (XVII), 1962, Resolution on Permanent
Sovereignty over Natural Resources; United Nations Council for Namibia, Decree
on the Natural Resources of Namibia, 13 International Legal Materials (1974),
36. Universal Declaration of the Rights of Peoples, (1976) Algiers,
Articles 2, 9, 13, 14 and 15.
37. This is expressly included in the standard
definition of the right of self-determination.
38. See, for example,
Principle VIII of the Helsinki Final Act, 1975.
39. Higgins refers to this
as "legal deconstructionism". See Higgins, final oral argument in pleadings in
Case concerning East Timor, supra, note 13, C/R 95/13.
Australia/Indonesia Treaty on the Zone of Cooperation in the Area Between the
Indonesian Province of East Timor and Northern Australia, 11 December 1989, 28
International Legal Materials (1990), 469.
41. Australian Counter Memorial,
Case concerning East Timor, supra, note 13, paras. 374-375. For discussion, see
Scobbie & Drew, "Self-determination Undetermined: The Case of East Timor", 9
Leiden Journal of International Law (1996), 185 at 201, footnote 63.
15 July 1999, the Far Eastern Economic Review, carried a report that the
Jakarta-appointed Governor Abilio Soares had in his possession a map outlining a
proposed partition of East Timor. Again in the absence of a genuine free choice
by the East Timorese - which as we will see is unlikely - any attempt to
partition East Timor would violate its right to territorial integrity and
constitute a flagrant violation of the international law on self-determination.
See Far Eastern Economic Review, 15 July 1999.
43. Report of the
Secretary-General, "The Question of East Timor", S/1999/513, 5 May 1999, para.
44. Agreement between the Republic of Indonesia and the Portuguese
Republic on the Question of East Timor (General Agreement), A/53/951, Annex I of
the Report of the Secretary-General, S/1999/513, supra, note 43 (reproduced
below at 29).
45. Ibid, Article 1. The Constitutional Framework is
appendixed to the General Agreement.
46. Ibid, Article 2.
Nations Security Council Resolution 1246 (1999), 11 June 1999, para. 1.
Agreement Regarding the Modalities for the Popular Consultation of the East
Timorese Through a Direct Ballot (Modalities Agreement), A/53/951, Annex II of
the Report of the Secretary-General, S/1999/513, supra, note 43.
Timor Popular Consultation Agreement Regarding Security (Security Agreement),
A/53/951, Annex III of the Report of the Secretary-General, S/1999/513, supra,
note 43 (reproduced below at 30).
50. For discussion, see Report of the
Secretary-General, supra, note 43, para. 4.
51. Security Agreement, supra,
note 49, Article 1.
52. Article 4 of the Security Agreement, provides that
the Indonesian police "will be solely responsible for the maintenance of law and
order..." and that civilian police advisers are to be made available to the
Indonesian police force to assist with the discharge of their electoral duties,
ibid, Article 4.
53. Ibid. Similarly, Part G of the Modalities Agreement
provides that "the Indonesian authorities will ensure a secure environment for a
free and fair popular consultation and will be responsible for the Security of
the United Nations personnel....", Modalities Agreement, supra, note 48.
Modalities Agreement, supra, note 48, Part A.
55. The Security Agreement,
supra, note 49, Article 3.
56. Report of the Secretary-General, supra, note
57. Ibid, para. 6. The Secretary-General states in his report that these
conditions have been emphasised to the parties.
58. Report of the
Secretary-General, "Question of East Timor", S/1999/705, 22 June 1999, para. 19,
(reproduced below at 32).
59. Ibid, para. 20.
60. Letter dated 14 July
1999 from the Secretary-General addressed to the President of the Security
61. See, for example, McBeth, "Living Dangerously:
Violence and Uncertainty fuel worries about the forthcoming Timor poll", Far
Eastern Economic Review, 15 July 1999, 16.
62. Report of the
Secretary-General, supra, note 58. According to the Secretary-General there are
now 60,000 displaced persons driven out of their homes by the militias. See also
Reuters, Washington Post, 22 July 1999 for details.
63. McBeth, supra, note
61, at 16.
64. Report of the Secretary-General, supra, note 58, para.16.
65. Security Agreement, supra, note 49, Article 1.
66. See, for example,
United Nations Security Council Resolution 435 (1978), 29 September 1978,
especially paras. 2, 3 and 6 in relation to Namibia.
67. United Nations
Security Council Resolution 1236 (1999), 7 May 1999 (reproduced below at 30) and
United Nations Security Council Resolution 1246 (1999), 11 June 1999. The right
of self-determination is not expressly referred to in either resolution although
United Nations Security Council Resolution 1236 does refer to it indirectly by
"recalling" United Nations General Assembly Resolutions 1514 (XV) and 1541 (XV),
supra, notes 3 and 9 respectively.
68.United Nations Security Council
Resolution 384 (1975), 22 December 1975 and United Nations Security Council
Resolution 389 (1976), 22 April 1976 called upon all States to "respect the
territorial integrity of East Timor as well as the inalienable right of its
people to self-determination in accordance with General Assembly resolution
1514" and called on "the Government of Indonesia to withdraw without [further]
delay all of its forces from the Territory", ibid, para. 2.
Portugal has stated that the East Timor Accords meet her objectives by
recognising the right of self-determination of the East Timorese. See, Note
Verbale, 2 June, from Charge d'affaires of the Permanent Mission of Portugal to
the United Nations addressed to the Secretary-General, A/54/121, 3 June 1999.
70. Western Sahara (Advisory Opinion), supra, note 6, para. 57.
United Nations General Assembly Resolution 1541 is expressly recalled in United
Nations Security Council Resolution 1236, supra, note 67, the preamble.
United Nations General Assembly Resolution 1514 (XV), supra, note 2.
United Nations General Assembly Resolution 2625 (XXV), supra, note 20.
The Modalities Agreement, supra, note 48, Part B.
75. See, for example,
United Nations Security Council Resolution 629 (1989), 16 January 1989. In
relation to elections in Namibia the United Nations Security Council expressed
"concern at the increase in the police and the paramilitary forces and the
establishment of the South West African Territorial Force" and stressed "the
need to ensure conditions under which the Namibian people will be able to
participate in free and fair elections."
76. My emphasis.
77. Report of
the Secretary-General, supra, note 43, para. 6.
78. United Nations Security
Council Resolution 1246, supra, note 67 ,para. 4.
79. Report of the
Secretary-General, supra, note 43, para. 6. 80.See, for example, Report of the
Secretary-General, S/1999/595, 22 May 1999, para. 23.
81. For details see,
43 Yearbook of the United Nations (1989),79.
82. For a much relied on
definition see, International Commission of Jurists, Report on Events in East
83. See Emerson, supra, note 4.
84. General Agreement,
supra, note 44, Article 1.
85. Modalities Agreement, supra, note 48, Part C.
86. There are an estimated 20,000 East Timorese refugees.
Peter Carey has figures from the University of Timor Timur which puts the number
of new comers at a quarter of the total population of 867,000, Carey, "Surviving
the Occupation: A Personal Journey through East Timor", in Poeze & Liem
(eds.) Lasting fascinations: essays on Indonesia and the southwest Pacific to
honour Bob Hering (Edisi Sastra Kabar Seberang Sulating Maphilindo, 1998), 83.
88. Modalities Agreement, supra, note 48. My emphasis.
there are other cities such as London which hosts East Timorese refugees. See
CIIR, 47 Timor Link, June 1999.
90. See text of proposed peace plan of five
Western United Nations Security Council members in United Nations Chronicle
(August-September 1978), 54.
91. See for details, United Nations Chronicle
(December 1989), 5.
92. United Nations Chronicle (September 1990), 13.
93. See Carey, supra, note 87.
94. See Machover, "International
Humanitarian Law and the Indonesian occupation of East Timor", in CIIR/IPJET,
supra, note 8, 205.
95. Article 49(6) of the 1949 Fourth Geneva Convention
provides that: "The Occupying Power shall not deport or transfer parts of its
own civilian population into the territory it occupies", Convention Relative to
the Protection of Civilian Persons in Time of War, Geneva Convention No. IV, 12
August 1949, reproduced in Roberts & Guelff, Documents on the Laws of War
(2nd ed.) (Clarendon, 1989).
96. CIIR, 47 Timor Link, June 1999, 6.
Thus the references to recalling United Nations General Assembly Resolutions
1514 (XV), 1541 (XV), 2625 (XXV) (supra, notes 3, 9 and 20 respectively) and
other resolutions which affirm East Timor's right of self-determination appear
to be rather cosmetic.
99. General Agreement, supra, note 44,
preambular para. 6.
100. Ibid, preambular para. 5.
Agreement, supra, note 44, Appendix, A Constitutional Framework for a special
autonomy for East Timor.
102. Ibid, Article 16.