A won its World Court case on East Timor on a legal technicality. The underlying moral question of the Timor Gap treaty and Australia’s recognition of Indonesian sovereignty over East Timor remains unaddressed. Portugal brought the case against Australia, saying that Australia’s signing of the Timor Gap treaty would result in an illegal exploitation of oil and other resources which properly remain the property of the East Timorese people and was contrary to UN resolutions that East Timor is a non-self-governing territory and the East Timorese should have an act of self-determination.
The court ruled 14-2 that to rule on Portugal’s case against Australia would require the determination of questions about the Indonesian invasion and annexation of East Timor in 1975. That would necessitate making judgment about Indonesia. The court said it could not do that without Indonesia appearing before it and submitting itself to the World Court’s jurisdiction.
The World Court’s charter says that it cannot make rulings about countries unless they first submit to its jurisdiction. As Indonesia had not done this, the court could not make any ruling that affected Indonesia. The court said it �cannot rule on Portugal’s claims on the merits, whatever the importance of the questions raised by those claims”.
So the Foreign Minister Gareth Evans has no real grounds for asserting this is a major victory for Australia and no-one has any reason for asserting that Australia’s policy on Timor has somehow been vindicated by the court. All that happened was that the main party did not show up and the World Court refuses to waste its time making rulings about countries that who will ignore them … a fairly sensible approach given that constant ignoring of its decisions will cause it to lose moral authority.
Early in 1978 Australia recognised the fact of Indonesian takeover and control in East Timor and later that year Australia said the beginning of negotiations over the continental shelf between East Timor would mark de jure recognition to Indonesia’s incorporation of East Timor. That happened in 1979. Australia has said the recognition did not alter Australia’s opposition to the manner of incorporation and Australia’s desire for an act of self-determination by the East Timorese. That position is hopelessly inconsistent.
Australia’s approach also lacks integrity. Successive Australian Governments have put selfish national interests above both the people of East Timor and more generally the rule of international law.
If the World Court had visited the merits, Australia’s case would have been very shaky. It converted acceptance of the fact of Indonesia’s annexation to recognition of lawful incorporation precisely on the basis that Indonesia was willing to negotiate on dividing up the spoils … the resources on the continental shelf between East Timor and Australia. Those spoils were not Indonesia’s to negotiate.
After 400 years of Portuguese rule society in East Timor was sufficiently distinct from the rest of the island of Timor and of the archipelago in general to warrant an act of self-determination when Portugal left. It may be that the people would vote to join or associate with Indonesia. Fine. But until that act happens, East Timor will remain unresolved and be a reminder of a shameful episode in Australian foreign policy.