The East Timor Story: International Law on Trial

This article considers the story of East Timor in the light of the international legal rules on self-determination. It is argued that such an analysis is both timely and necessary. For more than 20 years, international lawyers have brought the force of international legal norms to bear upon the 'Question of East Timor'. This article aims to do the reverse: to bring the force of the East Timorese debacle to bear upon international law. Following on from the Introduction, the argument proceeds in three parts. Part 2 considers the legal basis for East Timor's right of self-determination. Part 3 argues that, contrary to its populist charac- terization as excessively indeterminate, the right of self-determination has a discernible core content which confers on beneficiary peoples, such as the East Timorese, two distinct sets of entitlements: self-determination as process, and self-determination as substance. Finally, having established the basic legal framework, Part 4 compares two moments of high-level institutional engagement with (the two aspects of) East Timor's self-determination entitlement: the case brought by Portugal against Australia before the ICJ in 1995; and the UN-sponsored 'popular consultation' of August 1999. It is argued that the institutional shift from the ICJ to the UN was also characterized by a shift from formalism to pragmatism, and that both institutions failed to uphold the international legal rights of the East Timorese.