East Timor, the U.N. system, and enforcing non-recognition in international law.

• Author: Grant, Thomas D.

ABSTRACT

This Article seeks to assess how the U.N. system has enforced regimes of non-recognition under international law. Claims by certain communities to constitute states and claims by some states to hold title to certain pieces of territory have met with opposition from various quarters. At times, the United Nations has attempted to organize international non-recognition of such claims. The claim by the state of Indonesia to hold title to East Timor presents a vivid and important example of an attempt to set up a regime of non-recognition by the United Nations. The Article examines how the United Nations addressed the Indonesian claim and inquires whether this amounted to a self-enforcing regime of non-recognition.

The Article examines in detail U.N. practice in other regions of the world, including Katanga, Rhodesia, the South African "Homelands," Namibia, Israel, Cyprus, and Kuwait, in which the United Nations legislated rules of nonrecognition. In light of these examples, the Article concludes with a discussion of the East Timor case, in which the International Court of Justice (ICJ) decided that U.N. resolutions had not in fact created an international rule of recognition or non-recognition regarding the status of East Timor. Nonetheless, the Article speculates that the ICJ may have left open the possibility of adjudication of claims of illegal recognition, thus creating a future mechanism of regulating controversial claims concerning territory and statehood.

1. INTRODUCTION

   The inhabitants of East Timor on August 30, 1999 took part in a referendum on the future status of their country.(1) From this point, East Timor was on a course toward independence.(2) Political decisions in Portugal--the former colonial power and the state designated in U.N. General Assembly Resolution 1542 (XV) of December 15, 1960 as "Administering Power"(3)--political decisions in the territory itself, and, perhaps most of all, political decisions in Indonesia--the country that had actually controlled East Timor since 1975--were central determinants of that course.(4) At the same time, the legal status of East Timor should not be ignored as a factor in the movement of the territory from de facto province of Indonesia to independent state in statu nascindi. In particular, East Timor's status as a non-self-governing territory (NSGT) under Chapter XI of the U.N. Charter allowed self-determination to act within East Timor with a certain practical effect not guaranteed as of right in all parts of the world.(5)

   Yet Indonesia, the state most proximate to East Timor and the state that ruled East Timor for nearly a quarter century, long had claimed that no process of self-determination was required in the territory, apart from that already coordinated by the Indonesian government and its forces of occupation. Self-determination of the East Timorese, Indonesia claimed, was achieved through incorporation of their territory into Indonesia.(6) Indonesia persisted in this claim, even though the advent of Indonesian rule in East Timor was condemned as an illegal use of force.(7) and the continuation of that rule was criticized as a violation of the rights of the inhabitants of the territory.(8)

   It was left to the international community to preserve the status of East Timor as an NSGT. In particular, this meant assuring that measures were avoided that might have lent legal support to the Indonesian claim. Critical in the preservation of the status of East Timor as NSGT was a collective decision, taken at the U.N. level, to deny de jure status to the occupation, annexation, and administration by Indonesia of East Timor. The U.N. General Assembly and Security Counsel strongly implied early in the crisis over East Timor that the claims of Indonesia were predicated on breaches of international law.(9) This view appeared to develop into a decision to establish a regime of nonrecognition against Indonesia's claims. The General Assembly, in Resolution 31/53 of December 1, 1976, "[rejected] the claim that East Timor has been integrated into Indonesia, inasmuch as the people of the Territory have not been able to exercise freely their right to self-determination and independence." The Assembly repeated this formulation in 1989.(10) U.N. General Assembly Resolution 33/39 of December 13, 1978 "reaffirm[ed] the inalienable right of the people of East Timor to self-determination and independence, and the legitimacy of their struggle to achieve that right."(11) The Security Council, in Resolution 389 of April 22, 1976, "call[ed] upon all States to respect the territorial integrity of East Timor, as well as the inalienable right of its people to self-determination."(12) Thus, a regime of non-recognition was adopted by the most broadly constituted organization in international society, and, with varying levels of resolve, this regime was maintained throughout the period during which Indonesia ruled East Timor.(13)

   The object of this Article is to assess how--and indeed whether--the U.N. system has enforced regimes of nonrecognition.(14) This is a matter of broad interest. There are some 200 communities in the world today that claim to constitute independent states.(15) For the most part, the claims of such communities meet little or no opposition from states or from international organizations. A very small but important minority of putative states, however, face persistent opposition to their claims to statehood from some segment of international society.(16) Western Sahara, Anjouan, Chechnya, Kurdistan, and the Turkish Republic of Northern Cyprus (TRNC) each represent a claim, largely unrecognized in the world at large, of a community forming a state. The non-recognition of such claims has been set forth at different levels and by different participants in the decisionmaking process. In some cases, such as Western Sahara, only a small segment of the international community--perhaps only one state--participates in non-recognition of the claim to statehood.(17) In other cases, such as the TRNC, non-recognition is much more broadly supported.(18) The case of collective nonrecognition of East Timor, then, is more than a matter of isolated interest. Its contemporary relevance arguably is magnified by the rapid pace of events in that territory; more importantly, it usefully informs an important category of international legal conduct. It must be anticipated that when claims to a status are contested, actors taking one side in the contest will express their position as recognition of the claim while actors on the opposite side will express their position as non-recognition. Many contests in international law--whether over claims to statehood, claims to territory, or claims to some other status or thing--therefore often may equate to competing regimes of recognition and nonrecognition. How international society regulates widely agreed regimes of recognition or non-recognition in turn can be determinative of the outcome of such contests under law.

   This Article first reviews earlier U.N. practice regarding nonrecognition. Katanga and Rhodesia presented the first claims to statehood in the U.N. era that were rejected at the U.N. level for reasons of international law. The South African "Homelands" and Namibia involved claims by the apartheid-era government of South Africa about the legal status of certain territories in southern Africa that were not all recognized as parts of South Africa but were all under the de facto control of that state. The United Nations addressed these situations, too, by legislating rules of non-recognition. Response to annexation of Kuwait by Iraq is a further example of the establishment of a regime of nonrecognition at U.N. level. These and a handful of related precedents form the core of U.N. practice on non-recognition of claims to territory and claims to statehood. With that core of practice in mind, this Article examines how the International Court of Justice (ICJ), recruited by one state to help enforce a collective decision to deny recognition to the Indonesian claim over East Timor, addressed the proposition, implicit in the pleadings of that state, that breach of a regime of non-recognition is actionable under international law.

2. THE U.N. SYSTEM AND NON-RECOGNITION

   U.N.-sponsored rules of non-recognition up to 1987 were examined by John Dugard in Recognition and the United Nations.(19) This section briefly reviews these early rules and then discusses the rule of non-recognition legislated in response to the invasion of Kuwait by Iraq in 1990.

   1. Katanga and Rhodesia

      Two problems of political geography and law contributed to conflicts in Africa in the decades following the eclipse of European colonialism. The alignment of boundaries set in the late nineteenth and early twentieth centuries by colonial powers was one problem. The boundaries were in many instances set without regard to the political, ethnic, linguistic, or religious affinities of the indigenous population; yet, in deference to the principle uti possidetis juris,(20) virtually every boundary set by the European colonial powers was preserved as the boundary of an independent state after decolonization.(21) Thus, in many instances, groups of people were included in states of which they wanted no part or excluded from states to which they aspired to belong.

      A second problem, contributing to several conflicts, was the presence in parts of Africa of communities of European settlers and their descendants. Some of these communities were tenacious. Unlike European administrators in other parts of Africa who could be recalled to the metropole upon the granting of independence to the territories they administered--and who mostly, when recalled, in fact went--members of the settler communities perceived themselves to be in Africa as holders of title to territory in their own right. Questions of recognition arose in several situations in which one or the other of...