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The East Timor Popular Consultation: 
Self-Determination Denied

Catriona Drew
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 development."3

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- determination."13

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 colour."20

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 concerned."26

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 of independence?

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 self-determination.38

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 the UN."41

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

Recent developments

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 ballot.59

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 self-determination?

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 international law.

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 ----- ACCEPT
within the Unitary State of
the Republic of Indonesia?"

OR

"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 disenfranchisement.

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 activities..."78

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 elections.

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 Timor?

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 diverse.83

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 1975.93

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.

Final remarks

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 at all?

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 special autonomy:

" ... 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 Assembly."98

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 unlawful.

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.


Endnotes:

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 Nationalism@, 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.
5. Ibid.
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 110.
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.
12. Infra.
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. 134.
16. Katangese Peoples' Congress v. Zaire, supra, note 14.
17. 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.
24.Thus, 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, para. 55.
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.
32. Ibid.
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.
35. United 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), 1513.
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.
40. 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.
42. On 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. 1.
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.
47. United Nations Security Council Resolution 1246 (1999), 11 June 1999, para. 1.
48. 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.
49. East 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.
54. Modalities Agreement, supra, note 48, Part A.
55. The Security Agreement, supra, note 49, Article 3.
56. Report of the Secretary-General, supra, note 43.
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 Council, S/1999/788.
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.
69. Thus 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.
71. United Nations General Assembly Resolution 1541 is expressly recalled in United Nations Security Council Resolution 1236, supra, note 67, the preamble.
72. United Nations General Assembly Resolution 1514 (XV), supra, note 2.
73. United Nations General Assembly Resolution 2625 (XXV), supra, note 20.
74. 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 Pakistan (1971).
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.
87. Historian 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.
89. Presumably 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.
97. 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.
98. Ibid.
99. General Agreement, supra, note 44, preambular para. 6.
100. Ibid, preambular para. 5.
101. General Agreement, supra, note 44, Appendix, A Constitutional Framework for a special autonomy for East Timor.
102. Ibid, Article 16.

 

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