East Timor

LEGAL MEMORANDUM ON THE CASE OF EAST TIMOR

INTRODUCTION - Historical Background

Portugal administered East Timor as a non-self-governing territory under United Nation Chapter XI. On 27th August 1975, due to internal disturbances caused by factions calling for self-determination, Portugal withdrew from East Timor. Soon after its departure on 7th of December 1975, Indonesia invaded and incorporated East Timor as part of its territorial dominion. Later, on 20th of January 1978, Australia acknowledged de facto Indonesia's annexation of East Timor which was then followed by de jure recognition in the following year.

A number of talks took place between Portugal and Australia to resolve the issue concerning undefined continental shelf between Indonesia and Australian known as the 'Timor Gap'. However, failure to resolve the matter completely resulted in a treaty between the two countries for exploration and exploitation of natural resources known as the ‘Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia.'

SUMMARY of FACTS (Summary of facts from the side your supporting - one for Portugal and one for Australia. Also declare the position of Indonesia)

Portugal

On 22 February 1991 Portugal instituted proceedings against Australia concerning certain activities of Australia with respect to East Timor, namely the ‘East Timor Gap'. According to the Application, Australia had by its conduct failed to observe the obligation to respect the duties and powers of Portugal as the administering Power of East Timor and the right of the people of East Timor to self-determination and the related rights. In consequence, according to the Application, Australia had incurred international responsibility of both the people of East Timor and Portugal.

Australia

Indonesia

FACT

This case concerning East Timor, Portugal initiated proceedings against Australia regarding the people and territory of East Timor before International Court of Justice. However, the International Court Justice refused to rule on the validity of the ‘Timor Gap Treaty' (Continental Shelf) on the basis of Indonesia's absence as a third party not consenting to the jurisdiction of the Court. Following non representation by Indonesia, the proceedings technically falls out of the court's jurisdiction. Consequently, the court could not rule on Portugal's claim for to do this will be tantamount to ruling on the lawfulness of Indonesia's conduct in Indonesia's absence which will be in breach of the provisions of Art 36 paragraph 2 of the ICJ statutes. Nevertheless, the court sufficiently noted in its "non-statement" of the proceedings to support the fact that East Timor remains a non-self-governing territory under Chapter XI of the United Nations (UN) Charter. The Court would not expressly recognize Portugal's continued status as the administering Power over East Timor. Considering the importance of Indonesia's absence, their twenty-five year control over East Timor, the rejection by the U.N. of Indonesia's annexation and illegal occupation of East Timor, and the trends in the application of the principle of self-determination, it appears that Indonesia had certain rights and interests over East Timor in Portugal's absence.

ISSUE (brief topic of the issue is that sovereignty of East Timor is being violated)

This is an overview of a proceedings brought by Portugal against Australia for its failure to observe its duties and obligations to respect the rights of Portugal as an ‘Administering Power' vis-a-vis East Timor's Right to Self Determination and Control of Natural resources according to chapter XI of the Charter of the United Nations concerning the latter's activities with respect to East Timor ; and which Australia vehemently objected consequent upon which the International Court of Justice submitted there exists a legal dispute.

QUALIFYING FACTS

This is the issue of principle of self-determination, Permanent Sovereignty over Natural Resources and Jurisdictions.

PRINCIPLE OF INTRERNATIONAL LAW

(Which aspect of international law to apply - ANALYSIS - DISCUSSION)

Principle of Self-Determination

This is the issue of principle of self-determination, which literally means the right to control one's own destiny. By virtue of the principle of equal rights and self-determination of people enshrined in the Charter of the United Nations, all people have the right to freely determine, without external interference, their political statute and to pursue their economic, social and cultural development. As a result, every State has the duty to respect this right in accordance with the Charter of the United Nations.

However, there are two different approaches by two different schools of thought to principle of self-determination:

1. External Self- Determination: this is also known as narrower approach. According to

this school of thought, self determination extends only to colonies or areas subject to foreign occupation the right to govern their own affairs free from outside interference.

2. Internal Self- Determination: this is also known as broader approach. According to this

school of thought, this right belongs to all peoples, including minorities & indigenous people living within existing countries. While some believe that the term included the right to succeed, others advocate no more than the right to select a representative government using a legitimate political process.

The Status of East Timor in International Law is established under the Principle of self determination. The U.N. Charter forbids nation states from interfering with the territorial integrity of other nation states. Similarly, external self-determination is the right of individuals to be independent and free from outside interference. The UN Declaration on the Granting of Independence to Colonial Countries and People, found the subjection of peoples to alien subjugation, domination and exploitation contrary to the UN Charter and an impediment to the promotion of world peace and cooperation. Although external self-determination applies in both the colonization and foreign domination contexts, colonial claims rarely arise today. Instead, claims increasingly emerge from the foreign domination of one state over the other, as with the Indonesian occupation of East Timor.

The Principle of Jurisdiction

This very basic essence of sovereignty is existence of a state as an international entity where the state has authority and power over all property and persons withing its territory. No external powers, including the United Nation, under Charter 2 (7) can enforce jurisdiction over a soverign state, without it's approval, exception being cases on issues related to Human rights.

Therefore, a fundamental principle of its International Court of Justice's (PCIJ) is that it cannot decide a dispute between States without the consent of those States to its jurisdiction[1]. This principle was reaffirmed in the Judgment given by the Court in the case concerning Monetary Gold Removed from Rome in 1943 and confirmed in several of its subsequent decisions.

The PCIJ in the case law of Lotus[2] stated that ‘the first and foremost restriction imposed by imposed by International law upon a state is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another state'. To do so, it must have be expressly permitted by the state in concern. The jurisdiction of a state within its own territory is absolute.

This implies that indonesia is under no obligation to accept the jurisdiction of PCIJ under Internatonal Law.

Principle of Permanent Sovereignty over Natural Resources[3]

The General Assembly resolution 1803 (XVII) was based a on a number of previous UN resolutions which included resolution 1314 (XIII) that saw establishment of the ‘Commission on permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination'. Other considerations were taken when the resolution was drafted, some of which include;

* Resolution 1515 (XV) which ‘encouraged international co-operation in the economic development of developing countries'.

* the sovereign right of every State to dispose of its wealth and its natural resources should be respected;

* it was based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States;

* desirability to promote international co-operation for the economic development of developing countries, and that economic and financial agreements between the developed and the developing countries must be based on the principles of equality and of the right of peoples and nations to self-determination and;

* particular importance of promoting the economic development of developing countries and securing their economic independence was to be given.

Therefore, the fundamental principle of the resolution 1803 (XVII) is ‘Permanent sovereignty over natural resources' and the “The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.”.

ARGUMENT

Portugal's concern is that Australia has acted unlawfully by infringing the right of the people of East Timor to self - determination. The argument on behalf of Portugal rises from the issue that Australia had negotiated and concluded the 1989 ‘Timor Gap Treaty' and by commencing the performance of the Treaty, took measures under its domestic law for the application of the Treaty, continuing negotiation with Indonesia to infringe the rights of East Timor. The objective conduct of Australia is an exclusive concern for Portugal, which is distinguishable from any queries relating to the lawfulness of the conduct of Indonesia. Under the Prescription method, there has been no encroachment of East Timor's sovereignty, since it was colonised by Portugal in the 16th Century. Thus, resulting in Portugal obtaining good title to East Timor and the treaty between Indonesia and Australia, has in fact breached the rights of Portugal as the administering power, disregarding the Security Council Resolutions 384 and 389.

Portugal's issues is that Australia, in negotiating and concluding the 1989 ‘Timor Gap Treaty', in initiating performance of the Treaty, by taking measures under its domestic law for its application, and in continuing to negotiate with Indonesia, has acted unlawfully, in that it has infringed the rights of the people of East Timor to self-determination. Portugal is concerned exclusively with the objective conduct of Australia which is perfectly separable from any question relating to the lawfulness of the conduct of Indonesia. East Timor was colonized by Portugal in the 16th century and there has been no open encroachment of its sovereignty under the Prescription method. Therefore, Portugal has attained good title to East Timor thus and Australia treaty with Indonesia has infringed the rights of Portugal as the administering Power, contravening Security Council resolutions 384 and 389.

In addition, by creating the ‘Timor Gap Treaty' with Indonesia, Australia has infringed Permanent Sovereignty over the Natural Resources. The UN resolution 1803 (XVII) on ‘Permanent sovereignty over natural resources', identifies the rights of states to utilise their natural wealth and resources without restraint and in accordance to its interests. Nevertheless, by formulating the ‘Timor Gap Treaty' with Indonesia, Australia had obstructed the rights of Timorese, which were set out in this charter. Firstly, under paragraph (1), the treaty had deprived Timorese the rights of 'sovereignty over their natural wealth and resources' and failed to offer for the 'interests of their national development' and 'well being' of the Timorese. Secondly, under paragraph (2), the Timorese were not part to this treaty as a nation, therefore, 'exploration, development and disposition' of natural resources were not 'in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable'. Thirdly, under paragraph (5), Australia failed to give 'mutual respect' to Timorese 'based on their sovereign equality' as a nation seeking self-determination. Fourthly, under paragraph (6), the co-operation between Australia has failed to seek further development of East Timor based on 'respect for their sovereignty over their natural wealth and resources'. Finally, under paragraph (7), Australia has violated rights 'over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace'

Furthermore, Permanent Sovereignty over Natural Resources has been infringed by Australia by formulating the ‘Timor Gap Treaty' with Indonesia. The UN resolution 1803 (XVII) on ‘Permanent sovereignty over natural resources' recognisees the rights of states to freely dispose of their natural wealth and resources in accordance to its interests. However, by creating the Timor Gap Treaty with Indonesia, Australia had denied certain the rights of Timorese laid out in this charter. Firstly, under paragraph (1), the treaty has denied Timorese the rights of 'sovereignty over their natural wealth and resources' and failed to provide for the 'interests of their national development' and 'well being' of the Timorese. Secondly, under paragraph (2), the Timorese were not part to this treaty as a nation, therefore, 'exploration, development and disposition' of natural resouces were not 'in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable'. Thirdly, under paragraph (5), Australia failed to give 'mutual respect' to Timorese 'based on their sovereign equality' as a nation seeking self-determination. Fourthly, under paragraph (6), the co-operation between Australia has failed to seek further development of East Timor based on 'respect for their sovereignty over their natural wealth and resources'. Finally, under paragraph (7), Australia has violated rights 'over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace'.[4]

Australia had the occasion to create a treaty with Portugal on the Timor Gap, however, failed to do so. On the other hand, Portugal had never renounced it administering power for East Timor.

Portugal had never relinquished its administering power for East Timor, Australia had the opportunity to create treaty with Portugal on Timor Gap but failed to do so.

Australia's argument is based upon the concept of these proceeding brought forward by Portugal. This section of the memorandum will offer a legal presentation in favour of Australia and this submission will be analysed with regards to the legal principle of jurisdiction and self-determination. Firstly, as stated in Art 36 (2) Australia acknowledged the jurisdiction of the ICJ, also accepted by Portugal. Nonetheless, the significant matter is not between Portugal and Australia relating to the ‘Zone of Co-operation' treaty of 1989. If there is any state that has to bring proceedings against Australia regarding this mater, such a state will be Indonesia. At first, the treaty was formulated by the two sovereign states, Australia and Indonesia, on behalf of East Timor, which is the latter's 47th province. Indonesia applied an effective control over East Timor and consequently can negotiate treaties on their behalf. The East Timor's ‘Peoples Assembly' in 1976 passed the subsequent referendum and due to effective occupation, requested to be integrated into Indonesia[5]in accordance with UN resolutions 1541& 2465.

Australia argument is in light of these proceedings brought by Portugal against Australia, this section of the memo will provide a legal presentation in favor of Australia and this submission will be analyzed vis-à-vis the legal principle of jurisdiction and self-determination. Firstly, as stated in Art 36 (2) Australia accepted the jurisdiction of the ICJ as much as Portugal did. However, the substantial issue is not between Portugal and Australia regarding the ‘Zone of Co-operation' treaty of 1989. If any state, whatsoever, has to move proceedings against Australia concerning this issue such a state will be Indonesia. In the first instance, the treaty was entered into by two sovereign states Australia and Indonesia on behalf of East Timor which is the latter's 47th province. As a result of effective occupation and the subsequent referendum passed by the East Timor's ‘Peoples Assembly' in 1976 requesting to be integrated into Indonesia[6]in accordance with UN resolutions 1541& 2465, Indonesia exerted an effective control over East Timor and accordingly can negotiate treaties on their behalf.

As a result, East Timor remained under the administration of Indonesia until the UN security council resolution was approved in October 1999, which resulted in the people of East Timor significantly voted to disapprove the Indonesian offer of special autonomy. Instead, they favoured a United Nations supervised transition to an independent statehood. The following repeal by the ‘Indonesian Consultative assembly', of the law passed by the then ‘Peoples Assembly', which incorporated East Timor with Indonesia as its 47th province. Additionally, the election of the members of the ‘Constituent Assembly' in 2001 accountable for the drafting and endorsing a constitution for the island, which concluded into announcement by the UN General Assembly in 2002 declaring that ‘Timor Leste' as its 191st member state.

Consequently, East Timor remained under the administration of Indonesia until the UN security council resolution adopted in Oct. 1999 subsequent upon which the people of East Timor overwhelmingly voted to reject the Indonesian offer of special autonomy in favor of a United Nations supervised transition to independent state hood and the subsequent repeal by the ‘Indonesian Consultative assembly' of the law passed by the then ‘Peoples Assembly' which integrated East Timor with Indonesia as its 47th province; and furthermore the election of members of the ‘Constituent Assembly' in 2001 responsible for the drafting and ratifying a constitution for the island which culminated into pronouncements by the UN General Assembly in 2002 declaring ‘Timor Leste' as its 191st member states[7].

Relating to the issue of jurisdiction, the ICJ firstly had to address whether the treaty between Australia and Indonesia, which unfortunately had not consented to the proceeding, was valid or not. As stated previously in the ruling of the ICJ in 1954 regarding the case of ‘Monetary Gold Removed from Rome', brought forward by Italy against France, United Kingdom, Northern Ireland and the United States. The ICJ had held by an unanimous decision that in the absence of Albania, it could not permit to arbitrate Italy's claim against Albania. Furthermore, the proceedings could be addressed only if the matter with Albania had been in favour with Italy.

Therefore, regarding issue of jurisdiction, ICJ could not deliberate on the application brought by Portugal against Australia without firstly addressing whether the treaty between Australia and Indonesia, which unfortunately has not consented to the proceedings, was valid or not as stated in the earlier ruling of the ICJ[8]in 1954 concerning the case of the ‘Monetary Gold Removed from Rome' brought by Italy against France, United Kingdom and Northern Ireland and the United States. The ICJ held by unanimous decision that in the absence of the consent of Albania, it was not authorized to adjudicate upon Italy's claim against Albania; and furthermore the proceedings brought by Italy could be addressed if only the issue with Albania had been in favor of Italy.

The issue of ‘Self-Determination had been exercised by the people of East Timor, when the ‘People's Assembly' passed a law to be incorporated into Indonesia, with the latter sustaining effective control and implementing sovereignty over the ‘Non-Self-Governing-Territory'. This was declared and recognised by the ICJ in its non-statement. Consequently, Indonesia had lawful standing for negotiating the treaty on behalf of the ‘non-self- governing-territories' of East Timor. Thus, East Timor was confirmed as a ‘non-self-governing-territory' and does not possess the capacity to negotiate a treaty, without the sovereign state of Indonesia being involved.

On the issue of ‘Self Determination', the people of East Timor had exercised this when the ‘People's Assembly' passed a law to be integrated into Indonesia with the latter maintaining effective control and exercising sovereignty over the ‘Non- Self- Governing- Territory' as recognized and declared by the ICJ in its non-statement. Accordingly, Indonesia had legitimate standing for negotiating treaty on behalf of the ‘non-self- governing-territories' of East Timor.
Furthermore, East Timor was not a state but a ‘non-self-governing-territory' and consequently does not have the capacity to negotiate a treaty since it was under the effective control of a sovereign state of Indonesia.

Conversely, the title hold by Portugal is unformed, if the decision of the case of ‘Island of Palmas' between United States and Netherlands is applicable. Moreover, had another state, in this case being Indonesia, had commenced to exercise incessant and actual sovereignty over East Timor after the exit of Portugal, meant that Portugal does not attain a locus standi under International law to bring proceeding against the lawful conduct of the two sovereign states of Indonesia and Australia.
On the other hand, if the decision in the case of ‘Island of Palmas'[9] between the United States and the Netherlands could be applied, the title hold by Portugal is inchoate. Furthermore, the fact that another sovereign, which in this case is Indonesia, had begun to exercise continuous and actual sovereignty over Indonesia after the exit of Portugal meant that she does not have a locus standi under International law to bring proceedings against the legitimate conduct of two sovereign states of Australia and Indonesia.

RECOMENDATION (make recommendation to the judge from Portugal and Australia)

Portugal's Recommendations

It is recommended that the Court should rule upon the legitimacy of Indonesia's conduct as a precondition for deciding on Portugal's contention that Australia disregarded its obligation to respect Portugal's status as an administering power. Also, violating East Timor's status as a non-self governing territory and the right of the people of the Territory to self-determination and to permanent sovereignty over its wealth and natural resources. Indonesia's rights and obligations would therefore represent the very subject matter of such a judgment manufactured on the absence of the State's consent. This would counteract to the established principle of international law, embodied in the Court's Statute, specifically, that the Court can only exercise jurisdiction over a State with its consent.

It is therefore recommended that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a prerequisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status as administering Power, East Timor's status as a non-self governing territory and the right of the people of the Territory to self-determination and to permanent sovereignty over its wealth and natural resources. Indonesia's rights and obligations would thus constitute the very subject matter of such a judgment made in the absence of that State's consent. Such a judgment would run directly counter to the well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.

The Court should thus evoke in any event that is has taken to note in the Judgment that, for Portugal and Australia that, the Territory of East Timor should in fact remain a non-self governing territory and its people have the right to self-determination.

The Court should also recall in any event that it has taken note in the Judgment that, for Portugal and Australia that, the Territory of East Timor remains a non-self governing territory and its people have the right to self-determination.

Albeit, if Indonesia had performed as an administering power, it should owe a duty to protect East Timor's territorial sovereignty and natural resources. Plainly, there are a number of ways in which Indonesia had breached its duty. Firstly, by continuing to violate human rights of the East Timorese; secondly by political, social and cultural repression and lastly, by entering into treaties on behalf of the East Timorese for self-serving economic reasons. Indonesia has thus violated the territorial sovereignty of the East Timorese. Subsequently, the Timor Gap Treaty serves as a infringement of East Timor's territorial sovereignty and be considered illegal under international law.

Even if Indonesia acted as an administering power, Indonesia owes a duty to East Timor to protect East Timor's territorial sovereignty and natural resources. Evidently, Indonesia has breached this duty in a number of ways: first by continued human rights violations against the East Timorese; secondly by political, social, and cultural repression; and thirdly by entering into treaties on behalf of the East Timorese for self-serving economic reasons. Indonesia has thus violated the territorial sovereignty of the East Timorese. Consequently, the Timor Gap Treaty serves as a violation of East Timor's territorial sovereignty and should be considered illegal under international law.

Australia's Recommendations

Conclusion

In view of the findings of the argument above, as to whether Portugal Australia had incurred international responsibility of the people of East Timor. In its Judgment on the case, the Court found that it could not exercise the jurisdiction conferred upon it by the declarations made by the Parties under Article 36, paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the Application of the Portuguese Republic. Even if Indonesia acted as an administering power, Indonesia owes a duty to East Timor to protect East Timor's territorial sovereignty and natural resources. Evidently, Indonesia has breached this duty in a number of ways: by continued human rights violations against the East Timorese; by political, social, and cultural repression; and by entering into treaties on behalf of the East Timorese for self-serving economic reasons. Indonesia has thus violated the territorial sovereignty of the East Timorese. Consequently, the Timor Gap Treaty serves as a violation of East Timor's territorial sovereignty and should be considered illegal under international law.

Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court; it is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.

Portugal argument is that the United Nations resolutions, and in particular those of the Security Council, can be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over East Timor and, where the latter is concerned, to deal only with Portugal. Portugal maintains that those resolutions would constitute givens on the content of which the Court would not have to decide de novo.

The Territory of East Timor remains a non-self governing territory and its people has the right to self-determination, and that the express reference to Portugal as the administering Power in a number of the above-mentioned resolutions is not at issue between them.

http://books.google.com/books?id=slShsgHUvt4C&pg=PA190&dq=PORTUGAL+v.+AUSTRALIA&lr=&cd=23#v=onepage&q=PORTUGAL%20v.%20AUSTRALIA&f=false

http://en.wikipedia.org/wiki/Timor_Gap_Treaty

http://books.google.com/books?id=slShsgHUvt4C&pg=PA190&dq=PORTUGAL+v.+AUSTRALIA&lr=&cd=23#v=onepage&q=PORTUGAL%20v.%20AUSTRALIA&f=false

[1] http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2

[2] LOTUS Case (1972) PCIJ Ser. A No. 10

[3] http://www2.ohchr.org/english/law/resources.htm

[4] http://www2.ohchr.org/english/law/resources.htm

[5] ‘The case Concerning East Timor & Self- Determination', www.murdoch.Edu.Au/elaw/indices/author/291.html

[6] ‘The case Concerning East Timor & Self- Determination', www.murdoch.Edu.Au/elaw/indices/author/291.html

[7] ‘The case Concerning East Timor & Self- Determination', www.murdoch.Edu.Au/elaw/indices/author/291.html

[8] http://www.icj-cij.org/docket/files/19/4763.pdf

[9] http://www.haguejusticeportal.net/eCache/DEF/6/142.html