The Timor gap: who decides who is in control?

• Author: Pummell, Brandi J.
• Position: East Timor

1. FACTS & PROCEDURAL HISTORY

   East Timor lies just opposite Australia and includes the island of Atauro, the islet of Jaco, and Oe-Cusse in the Western part of Timor.(1) Portugal colonized East Timor in the 16th Century and occupied the area until 1975.(2) The Dutch controlled the Western part of the island which later became Indonesia.(3) As part of the decolonization process, the United Nations named Portugal Administering Power over the nonself governing territory of East Timor.(4) As such, Portugal was expected to protect the interests of East Timor and make regular statistical and informational reports on the country to the Secretary General of the United Nations;(5) Portugal never fulfilled its duties toward East Timor and the United Nations.(6) It continued to treat East Timor as an overseas province despite several Security Council resolutions condemning it for failing to implement the United Nations' decolonization policy.(7) Finally, during the Carnation Rebellion of April 1974, Portuguese authorities abruptly abandoned East Timor after 400 years of colonization, never to return.(8) Indonesia eventually restored order to the country by sending a 10,000 man army into East Timor in December of 1975, claiming one of East Timor's leading political parties had requested annexation into Indonesia.(9) Indonesia has remained in control of East Timor ever since.(10)

   Alleging that the people of East Timor wanted to join it, Indonesia annexed East Timor on July 17, 1976.(11) The U.N. General Assembly and Security Council responded with resolutions calling on "all states to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination" and requesting that Indonesia remove its forces from the area without delay.(12) The United Nations also applied for Portuguese assistance in preserving East Timor's right to self-determination in its capacity as Administering Power of East Timor. Similar resolutions emerged periodically from the Security Council until 1976, and from the General Assembly until 1982.(13) Despite this ongoing discussion of the plight of East Timor, the United Nations took no action.(14)

   Australia's Minister of Foreign Affairs recognized Indonesia's de facto incorporation of East Timor with a statement that Indonesia controlled "all major administrative cent[ers] of the territory."(15) Therefore, it would be "unrealistic to continue to refuse to recognize de facto that East Timor is part of Indonesia."(16) Nevertheless, Australia continued to protest the means through which Indonesia acquired control over East Timor.(17)

   Australia and Indonesia entered into a continental shelf delineation agreement in 1970-71(18) which omitted any reference to the Timor Gap.(19) It was not until 1979 that Australia and Indonesia addressed the Timor Gap. The two countries made little progress until the Treaty on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia,(20) in which they decided to develop joint exploration and exploitation of the continental shelf.(21) This treaty created a zone of cooperation between East Timor and Northern Australia.(22) When Australia took internal steps to implement the treaty, Portugal, as Administrating Power, brought an application against Australia before the International Court of Justice (ICJ) challenging the treaties validity.(23)

2. THE INTERNATIONAL COURT OF JUSTICE AND THE CASE CONCERNING EAST TIMOR

   The ICJ is open to all states.(24) All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice, and non-members may elect to become parties to the Statute on conditions to be determined by the General Assembly upon recommendations of the Security Council.(25) In addition, states belonging to neither the U.N. nor the Statute of the ICJ may become parties before the Court by accepting the jurisdiction(26) of the court in accordance with the U.N. Charter, Statute and Rules of the Court, and agreeing to assume and fulfill the same duties and conditions created by a decision of the ICJ as apply to U.N. members.(27) Even members of the U.N. may submit disputes to other tribunals pursuant to past or future agreements, but if they resort to the ICJ for settlement of their disputes, they must comply with its decisions.(28) A party wishing to enforce the Court's decisions may seek a recommendation of enforcement from the Security Council.(29)

   Because members of the U.N. refused to accept the principle of compulsory jurisdiction at the San Francisco Conference that created the United Nations, "a preliminary agreement, called a compromis, establishes the terms under which [a] dispute will be arbitrated by the Court.(30) This rejection of compulsory jurisdiction results naturally from the states' desire to preserve their independence.(31) However, parties sometimes make preliminary agreements to submit certain types of disputes to the ICJ by treaty provision.(32) The Court has interpreted such provisions narrowly to preserve its prestige and to ensure that its decisions are complied with.(33)

   In 1995, the International Court of Justice considered whether it had jurisdiction to decide Portugal's case against Australia. Under international law states are independent and equal, so that no state may exercise jurisdiction over another without its consent.(34) Similarly, ICJ jurisdiction in contentious proceedings requires consent by all parties directly affected by an action.(35) Consent can take one of many forms.(36) Normally, parties refer a case to the Court jointly, but nothing precludes each from doing so separately. Once proceedings have started, a defendant may accept jurisdiction(37) explicitly in the form of an express statement(38) or implicitly by defending the case on the merits without challenging the jurisdiction of the Court.(39) In addition, states may exercise the option clause to accept compulsory jurisdiction of the ICJ in advance of a dispute.(40) A recommendation by the Security Council or the ICJ itself will not bind states to the Court's jurisdiction.(41) Furthermore, states accept compulsory jurisdiction only with respect to states who have accepted the same obligation.(42) This prevents them from benefiting from a ruling by the ICJ without also being bound by it. Although Australia and Portugal previously accepted the compulsory jurisdiction of the ICJ, the Court concluded it could not exercise jurisdiction over the case because any decision made by the Court would inextricably affect the rights of Indonesia, a non-consenting third-party to the dispute.(43)

   On Feb. 22, 1991, the Portuguese Ambassador to the Netherlands filed an application to institute proceedings against Australia concerning certain activities with respect to East Timor.(44) Portugal alleged that Australia had "failed to observe ... [its] obligation to respect the duties and powers of [Portugal as] the administrating Power" of East Timor and the right of its people to self-determination.(45) Accordingly, Portugal asked that the Court order appropriate reparations to Portugal and East Timor.(46)

   Portugal and Australia had already acceded to compulsory ICJ jurisdiction,(47) in accordance with the Statute of the International Court of Justice.(48) However, Indonesia had not.(49) The U.N. immediately communicated the substance of Portugal's application to Australia and all other interested states entitled to appear before the Court.(50) There were concerns about the possible impact of any decision on the rights of Indonesia who had not accepted ICJ jurisdiction.(51)

   In its counter-memorial filed on June 1, 1992, Australia questioned the Court's jurisdiction as well as the admissibility of the Application itself.(52) Because both parties felt these issues were inextricably linked to the merits of the case, Australia deferred its objection until consideration of the merits of the case pursuant to Article 31 of the Rules of the Court.(53) Portugal filed a reply prior to Dec. 1, 1992. The ICJ accepted Australia's rejoinder on July 5, 1993, following an extension of the deadline until July 1, 1993(54) and discretionary review of the timeliness of the filing in accordance with its rules.(55)

   Next, each party to the proceedings took advantage of the ICJ statute provision allowing parties not already represented by the regular members of the court to appoint an ad hoc judge to sit on the court for the duration of the dispute.(56) Portugal selected Mr. Antonio de Arruda Ferrer-Correria and Australia, Sir Ninian Martin Stephen.(57) Unfortunately, Mr. Ferrera-Correria became unable to sit on the Court and notified the ICJ of that fact by a letter dated June 30, 1994.(58) Portugal then appointed Mr. Krysztof Jan Skubiszewski to replace him on July 14, 1994.(59)

   During oral arguments, Portugal first asked the ICJ to recognize the rights of the people of East Timor to self-determination, territorial integrity and unity, and to sovereignty over its wealth and natural resources, and the duties, powers, and rights of Portugal as the Administering Power of East Timor.(60) Then, Portugal argued that by negotiating the Treaty on the Zone of Cooperation to the exclusion of Portugal, Australia infringed on East Timor's right to self-determination, territorial integrity and unity, and its permanent sovereignty over its natural wealth and resources. It impeded Portugal in its duties to the people of East Timor and to the international community and breached an international obligation to cooperate in good faith with the United Nations respecting its policy towards East Timor.(61)

   Portugal also wanted the ICJ to find that Australia ignored its duty to "harmonize" conflicting rights or claims over maritime areas by excluding Portugal from negotiations with respect to the exploration and exploitation of the continental shelf within the Timor Gap,.(62) Finally...