Lest We Forget: Australia's Policy on East Timorese Asylum Seekers

International Journal of Refugee Law

Volumn 11, Issue 1, 1999, Pages 7-59

  Mathew, Penelope ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; IMMIGRATION POLICY; POPULATION MIGRATION;

AUSTRALIA; EAST TIMOR;

EID: 0033377354     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.1.7     Document Type: Article

References (326)

1. On 10 March 1993, the United Nations Commission for Human Rights adopted a resolution criticising Indonesia for human rights abuses in East Timor and for failing to identify all persons responsible for the Dili massacre: UN doc. E/CN.4/1993/L.11/Add.9. A number of the Commission's processes have been called into play in East Timor. Sec below, Section 2.
2. See further below, Section 2.
3. See Piper, T. (Writenet UK), 'East Timor: Prospects for Resolution' (June 1995). Available on the United Nations High Commissioner for Refugees website RefWorld in the country information file (Writenet country papers): http://www.unher.ch/refworld/country
4. De facto recognition was announced in 1978: Statement by Mr Peacock, Minister for Foreign Affairs, 20 Jan. 1978 (Comm Rec 1978, 25-6), reproduced in 8 AustYBInt'lL (1978-80) 279. The 1979 announcement of negotiations between Australia and Indonesia regarding the continental shelf between East Timor and Australia (the 'Timor Gap') indicated de jure recognition: Statement of Mr Peacock, 15 Dec. 1978, reproduced ibid, p. 281.
5. The change in attitude was publicised when an advice by the Chief General Counsel of the Attorney-General's Department was supplied to the Australian Refugee Review Tribunal (RRT) on 20 Sept. 1995. The contents of the advice are described in Section 5.
6. According to former Australian Prime Minister Paul Keating, 'Canberra was not prepared to sacrifice its vital relationship with Indonesia [and he dismissed] East Timorese appeals for refuge in Australia as a "phoney campaign".' Reported in 'Keating Spurns Timor Refugees', 11 Oct. 1995, the Guardian, 15. Indonesia's Foreign Minister Ali Alatas responded that Indonesia would welcome a rejection of asylum seekers' claims because 'it has always been our basic position that there is no grounds [sic] really for these people to be granted refugee status.' Reported in 'Jakarta would welcome Canberra rejection of East Timor boat people,' 12 Oct. 1995, Agence France Presse.
7. According to former Australian Prime Minister Paul Keating, 'Canberra was not prepared to sacrifice its vital relationship with Indonesia [and he dismissed] East Timorese appeals for refuge in Australia as a "phoney campaign".' Reported in 'Keating Spurns Timor Refugees', 11 Oct. 1995, the Guardian, 15. Indonesia's Foreign Minister Ali Alatas responded that Indonesia would welcome a rejection of asylum seekers' claims because 'it has always been our basic position that there is no grounds [sic] really for these people to be granted refugee status.' Reported in 'Jakarta would welcome Canberra rejection of East Timor boat people,' 12 Oct. 1995, Agence France Presse.
8. 189 UNTS 150. All references to the Refugee Convention (CSR51) mean the Convention as amended by the 1967 Protocol Relating to the Status of Refugees: 606 UNTS 267. Australia is party to both instruments.
9. The Preamble to the Convention declares, among other things, that 'it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments by means of a new agreement.'
10. The obligation of non-refoulement is contained in art. 33 CSR51.
11. The 1951 Convention does not contain a right of entry to third States, nor does it contain a right to receive asylum. However, it is generally accepted that the protection of non-refoulement extends to asylum seekers at the border, thus the refugee may be considered at least a partial exception to the power to exclude aliens, and, in practice, residence is often granted to refugees.
12. The 'multiple nationality' clause follows the refugee definition in art. 1A(2) CSR1; see text accompanying n. 104 below.
13. The obligation to recognise foreign nationalities is well accepted at customary international law and has been codified in art. 1 of the 1930 Hague Convention on Questions Relating to Conflicts of Nationality: 179 LNTS 89 ('Hague Convention').
14. The legal position of the Australian government is contained in two opinions from the Australian Attorney-General's Department, details of which appear in Section 5 below.
15. See the file note recording the comments of the Portuguese ambassador referred to in the text accompanying n. 127 below. See also Nygh, P., 'Multiple Nationality and the Refugee Convention,' Retreating from the Refugee Convention (Conference Proceedings, Northern Territory Press, Australia, 1997) at 7.
16. Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695. The matter was remitted for reconsideration by the Refugee Review Tribunal. The Tribunal denied refugee status a second time and another application for judicial review has been made. See Sections 6.2 and 6.4 below.
17. The Refugee Review Tribunal is responsible for merits review of refugee status decision-making by officers of the Department of Immigration and Multicultural Affairs. Judicial review is then available before the Federal Court. For a discussion of RRT decisions regarding East Timorese asylum seekers prior to the decision in Jong Kim Koe (id), see Piotrowicz, R., 'Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?', 8 IJRL 319 (1996).
18. See n. 127 below.
19. See n. 130 below.
20. See the text following n. 46 below.
21. Taylor, J., 'Australia may appeal after East Timorese refugee wins test case,' Agence France Presse, 2 May 1997.
22. Jardine, M., East Timor: Genocide in Paradise, Tucson, Arizona: Odonian, 1995, 22.
23. Dunn, J., Timor: a People Betrayed, Milton, Queensland, Australia: Jacaranda, 1983, 23.
24. Dunn quotes a diplomatic cable that probably expresses the view as to what the Australians hoped to achieve: 'the Australians were defending Australia in a forward position, not East Timor!' Ibid., 128.
25. Ibid., 161.
26. Ramos Horta, J., Funu: the Unfinished Saga of East Timor, Trenton, N.J.: Red Sea Press, 1987, 75.
27. Interviewed for an Australian current affairs television programme in 1996, a young woman asylum seeker who left East Timor following the Dili massacre expressed her confusion and dismay in light of her father's advice that the Australians would help her.
28. Koskenniemi identifies two approaches to sovereignty predominant in legal theory. The 'pure fact' approach treats sovereignty as a fact from which law follows or is created. The competing normative approach considers sovereignty to be created by and subject to law. Koskenniemi, M., From Apology to Utopia: the Structure of International Legal Argument, Helsinki: Finnish Lawyer's Pub. Co., 1989, Ch. 4.
29. For information about human rights violations in East Timor, and relevant UN investigations, see East Timorese Human Rights Centre, '1996 Report on Human Rights Violations in East Timor': http://www.peg.apc.org/~etchrmel/
30. n. 1 above.
31. UN doc. E/CN.4/1997/L.96.
32. UN doc. E/CN.4/1995/34.
33. UN doc. E/CN.4/1995/61/Add.1.
34. Amnesty International, 'Ethnicity and Nationality: Refugees in Asia,' 1 October 1997, AI Index: ASA 01/01/97, 26.
35. See the following decisions of the RRT. 1. RRT Reference, V96/04076 (15 Aug. 1996). The applicant, a member of a politically active family, was tortured after participating in a demonstration in Dili at the age of 14 and was instrumental in the organisation of the Santa Cruz demonstration in 1991. 2. RRT Reference, V96/04067 (14 May 1996). The applicant's father had been a member of UDT prior to the invasion. The applicant was concerned about Indonesian maltreatment of East Timorese and joined a student group linked to the armed resistance. He joined Fretilin in Australia and has been politically active since then. 3. RRT Reference, V95/02953 (4 Jun. 1996). The applicant's father was forced by the Indonesian military to disclose the whereabouts of rebel hideouts and the family home was searched. The applicant was discriminated against at school by Indonesian teachers. The applicant participated in the Santa Cruz demonstration and previous demonstrations as well as demonstrations in Australia. 4. RRT Reference, V95/02944 (20 Aug. 1996). The applicant's family home was searched after the Indonesian invasion because of suspected links with the resistance. The applicant's father was tortured by the military. The applicant's brothers were tortured after an unsuccessful escape attempt. Her sister was compelled to marry an Indonesian soldier and the applicant was constantly harassed for marriage or sex with Indonesian soldiers. The applicant was also politically active in Australia. 5. RRT Reference, V95/02940 (6 June 1996). The applicant was tortured at military facilities and became politically active in 1988. He was arrested for participation in the Santa Cruz demonstration and members of his family were arrested and interrogated. He was beaten by the military in 1992, and is politically active in Australia. Each of these applicants was found to have a well-founded fear of persecution in East Timor. For similar claims and findings, see RRT Reference, V94/02130 (15 May 1996); RRT Reference, V95/02935 (29 May 1996); RRT Reference, V94/02437 (14 Aug. 1996); RRT Reference, V94/02356 (14 May 1996); RRT Reference: V94/02272 (9 Aug. 1996); RRT Reference, V94/02140 (14 May 1996); RRT Reference, V94/ 02118 (15 May 1996). There have been a few cases in which the veracity of claims has been doubted or the evidence regarding a well-founded fear was found not to disclose a real chance of persecution: See, for example, RRT Reference: V94/01736 (12 Apr. 1996); RRT Reference: V94/01514 (17 Jun. 1996). All decisions are available from the Australian Legal Information Institute (AustLII) website: http://www.austlii.edu.au/
36. Chinese links with the island date back to the fifteenth century. Dunn, n. 22 above, 9-11.
37. Davison, G.W., 'Historical Reality and the case of East Timor', in International Law and the Question of East Timor, London: CIIR & IPJET, 1995, 11, at 12-13.
38. Ibid. Since Indonesia's education system is premised on Bahasa Indonesian, the survival of Tetum is threatened
39. Indonesia argues that the boundary has been eliminated through the process of historical consolidation, but this argument is not widely accepted. See Section 7 below.
40. For the historical background regarding the boundary, see Krieger, H., ed., East Timor and the International Community: Basic Documents, Cambridge; New York: Cambridge University Press, 1997, xix and 7.
41. Davison, n. 36 above, at 13-14.
42. See UNGA res. 1542 (XXVII).
43. Conforti argues that art. 73 has been 'abrogated' and replaced with the more substantial obligation to ensure an act of self-determination. Conforti, B., The Law and Practice of the United Mations, The Hague; Boston: Kluwer International, 1996, 247.
44. The committee was established to implement the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples: UNGA res. 1514 (XV).
45. See particularly, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, ibid, para. 2.
46. UNGA res. 2625 (XXV) (1970).
47. Ofuatey-Kodjoe, W., 'Self-Determination,' in Schachter, O. and Joyner, C., eds., United Nations Legal Order, Cambridge: Grotius Publications, Cambridge University Press, 1995, 349, at 368. The ICJ has accepted the Declaration as binding international law in the advisory opinions relating to Namibia ICJ Rep. 1971, 16 and Western Sahara ICJ Rep. 1975, 12. For a discussion of the views of various commentators, see Sinclair, I., 'The Significance of the Friendly Relations Declaration' in Lowe, V. and Warbrick, C., eds., The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst, London; New York: Routledge, 1994, 1.
48. Ofuatey-Kodjoe, W., 'Self-Determination,' in Schachter, O. and Joyner, C., eds., United Nations Legal Order, Cambridge: Grotius Publications, Cambridge University Press, 1995, 349, at 368. The ICJ has accepted the Declaration as binding international law in the advisory opinions relating to Namibia ICJ Rep. 1971, 16 and Western Sahara ICJ Rep. 1975, 12. For a discussion of the views of various commentators, see Sinclair, I., 'The Significance of the Friendly Relations Declaration' in Lowe, V. and Warbrick, C., eds., The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst, London; New York: Routledge, 1994, 1.
49. Delegates representing anti-colonial States were concerned that colonised peoples did not have full rights in reality and that the territory of non-self-governing territories should not be treated as an integral part of the colonial state unless the inhabitants opted for integration. See, for example, 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 21st session, Annexes, Vol. 111; 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 24th session, Supp No. 19 (A/76/19); 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 25th session, Supp No. 18 (A/80/18).
50. Delegates representing anti-colonial States were concerned that colonised peoples did not have full rights in reality and that the territory of non-self-governing territories should not be treated as an integral part of the colonial state unless the inhabitants opted for integration. See, for example, 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 21st session, Annexes, Vol. 111; 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 24th session, Supp No. 19 (A/76/19); 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 25th session, Supp No. 18 (A/80/18).
51. Delegates representing anti-colonial States were concerned that colonised peoples did not have full rights in reality and that the territory of non-self-governing territories should not be treated as an integral part of the colonial state unless the inhabitants opted for integration. See, for example, 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 21st session, Annexes, Vol. 111; 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 24th session, Supp No. 19 (A/76/19); 'Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States', GAOR, 25th session, Supp No. 18 (A/80/18).
52. Arangio-Ruiz, G., The UN Declaration on Friendly Relations and the System of the Sources of International Law, Alphen aan den Rijn, The Netherlands: Sijthoff & Noordhof, 1979.
53. Ofuatey-Kodjoe, W., The Principle of Self-Determination in International Law, New York: Nellen, 1977, 135.
54. Originally art. 307 of the 1976 Constitution 'safeguarded' East Timor's independence, while Constitutional Law 7/75 affirmed the right of East Timorese to self-determination: Case concerning East Timor (Portugal v Australia), ICJ Rep 1995, 90, per Scubiszewksi J, at para. 12.
55. All references to the Portuguese Constitution are to the 1976 Portuguese Constitution (as amended in 1989), Blaustein, A.P. & Flanz, G.H., Constitutions of the Countries of the World, Dobbs Ferry, N.Y.: Oceana, 1997, vol. XV (entry for Portugal).
56. Timor case, n. 50 above, per Scubiszewksi J, at para. 15.
57. See Clark, R.S., 'The "Decolonisation" of East Timor and the United Nations norms on self-determination and aggression' in International Law and the Question of East Timor, n. 36 above, 65 at 74 (regarding the claim of assistance to self-determination) and 97 (regarding the claim of maintaining order in the region and Fretilin's communism).
58. Jardine, n. 21 above, at 35.
59. Ko Swan Sik and Teuko Moh. Rhadic writes that the explanatory memorandum to the Act that purported to annex East Timor indicated that the East Timorese are Indonesian nationals. See 'Nationality and International Law in Indonesian Perspective' in Ko Swan Sik, ed., Nationality and International Law in Asian Perspective, Dordrecht; Boston; London: Martinus Nijhoff, 1990 at p. and n. 132. There has been some uncertainty as to whether Indonesia conferred nationality on all East Timorese as a matter of course (see n. 69 below), however, it was confirmed for the RRT that Indonesia does consider East Timorese as its nationals: advice of Dr Tim Lindsey, Barrister and Solicitor of the Supreme Court of Victoria and Senior Associate at the University of Melbourne Law School's Asian Law Centre, 20 Nov. 1995. (Copy of opinion on file with author.) The arrival in Australia of many Timorese travelling on Indonesian passports also confirms that they are considered to be Indonesian citizens.
60. Jardine, n. 21 above, at 63. See also Senate Standing Committee on Foreign Affairs and Defence, 'The Human Rights and Conditions of the People of East Timor': Canberra: Australian Government Printing Service, 1983, 25.
61. Jardine, n. 21 above, at 57-8. See also, 'The Human Rights and Conditions of the People of East Timor,' n. 56 above, at 24.
62. Jardine, n. 21 above, at 62.
63. Naiman, A., preface in Jardine, n. 21 above, at 7.
64. The 'peace plan,' adopted in November 1993, is available on the East Timor Relief Association internet site at http://www.easttimor.com/html/key_documents.html
65. n. 4 above.
66. Ibid.
67. 1989 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, ATS 1991 No. 9.
68. Timor case, n. 50 above.
69. Senate Standing Committee on Defence and Foreign Affairs, 'Australia and the Refugee Problem, the Plight and Circumstances of Vietnamese and Other Refugees': Canberra, Australian Government Printing Service, 1976, 48. At that time, Australia did not have a particularly formal system for determination of refugee status as the number of asylum seekers prior to the fall of Saigon had been minimal. See Crock, M., Immigration and Refugee Law in Australia, Sydney: Federation Press, 1998, Ch. 7.
70. Senate Standing Committee on Defence and Foreign Affairs, 'Australia and the Refugee Problem, the Plight and Circumstances of Vietnamese and Other Refugees': Canberra, Australian Government Printing Service, 1976, 48. At that time, Australia did not have a particularly formal system for determination of refugee status as the number of asylum seekers prior to the fall of Saigon had been minimal. See Crock, M., Immigration and Refugee Law in Australia, Sydney: Federation Press, 1998, Ch. 7.
71. See evidence presented by Mr Joao Goncalves to the Senate Standing Committee on Foreign Affairs and Defence, Reference on East Timor -Human Rights and the Condition of the People, Official Hansard Transcript of the Evidence, Canberra: Australian Government Printing Service, 1982, Vol. 1, at 994.
72. See 'The Human Rights and Conditions of the People of East Timor,' n. 56 above, at 76.
73. An examination of the transcript of the inquiry into human rights and conditions of the East Timorese people reveals that the nationality issue was raised in relation to the right to work and the question of refugee status, however, the report only refers to the fact that East Timorese were being forced to choose between Portuguese and Indonesian citizenship in order to work in the public service: ibid, at 36.
74. The development of human rights law has had an impact on how States are required to treat their nationals as a matter of international law, however: see text following n. 85 below.
75. Nationality may be thought of as the international legal concept and citizenship as the municipal legal concept of membership of the national community, and in some countries, such as the United States, the terms are not synonymous. Nevertheless, the terms nationality and citizenship will be used interchangeably in this article. The focus of enquiry for the purposes of the Refugee Convention is not on terminology alone, but on whether a particular 'nationality' serves to give sufficient protection to persons who might otherwise need protection as refugees and this leads to an examination of relevant domestic laws and practice.
76. Human Rights law imposes minimum obligations for the treatment of all individuals within States' territory and jurisdiction, aliens and nationals alike, however: see, for example, art. 2 ICCPR66: 993 UNTS 171.
77. The four traditional requirements for statehood are defined territory, a permanent population, effective government and independence: 1933 Montevideo Convention on the Rights and Duties of States: 165 LNTS 19.
78. Crawford, J., The Creation of States in International Law, Oxford: Clarendon Press, 1979, 40.
79. Nationality Decrees in Tunis and Morocco (Advisory Opinion) PCIJ Reports, Series B, No. 4, 27 (1923).
80. Art. 1, Hague Convention, n. 12 above.
81. Art. 2, Hague Convention, n. 12 above.
82. Plender, R., International Migration Law, Leiden: Sijthoff, 1972, 71
83. Nationality, like territory, is a well-accepted basis for the exercise of State jurisdiction.
84. As Brownlie states, '[s]overeignty which is in principle unlimited, even by the existence of other States, is ridiculous, whether dominion is sought to be exercised over territory, sea, airspace, or populations.' Brownlie, I., Principles of Public International Law, Oxford: Clarendon; New York: Oxford University Press, 5th ed., 1998, 387.
85. 81 National laws may demonstrate the existence of a 'general' principle accepted by all States within the meaning of art. 38(1)(c) of the Statute of the International Court of Justice. It is harder to assert the existence of a customary rule in this area because of the difficulty in locating opinio juris.
86. Brownlie, Principles of Public International Law, n. 80 above, 390-7; See also Restatement of the Foreign Relations Law of the United States (Third), Washington, D.C.: American Law Institute, 1986, section 211, comment c. But see Weis, P., Nationality and Statelessness in International Law, London: Stevens & Son, 2nd ed., 1978, 88.
87. Brownlie, Principles of Public International Law, n. 80 above, 390-7; See also Restatement of the Foreign Relations Law of the United States (Third), Washington, D.C.: American Law Institute, 1986, section 211, comment c. But see Weis, P., Nationality and Statelessness in International Law, London: Stevens & Son, 2nd ed., 1978, 88.
88. See the cases cited in Donner, R., The Regulation of Nationality Under International Law, N. Y.: Transnational, 2nd ed., 1994, at 160-5, Support for this position is particularly prevalent in the United States: see for example, Third Restatement, n. 82 above, section 211, note 2.
89. For examples, see Bowett, D.W., 'Estoppel Before International Tribunals and its Relation to Acquiescence,' 3 BYIL 176 (1957), at 197.
90. The right to a nationality is included in art. 15 UDHR48: UNGA res. 271A(111), 10 Dec. 1948; art. 24(3) ICCPR66, though referring only to the rights of children to acquire a nationality; and art. 20 ACHR69: 9 ILM 101 (1970). For a discussion of the human right to a nationality, see Chan, J.M.M., 'The Right to a Nationality as a Human Right', 12 HumRtsLJ 1 (1991).
91. Art. 20(2) ACHR69 provides that every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. The 1961 Convention on the Reduction of Statelessness: 989 UNTS 175 contains concrete obligations to confer nationality in particular circumstances as does the 1997 European Convention on Nationality: ETS No. 166, 37 ILM 44 (1998); Batchelor, C.A., 'Statelessness and the Problem of Resolving Nationality Status', 10 IJRL 156 (1998).
92. Art. 12(4) ICCPR66.
93. Art. 15(2) UDHR48 provides that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Both the 1957 Convention on the Nationality of Married Women: 309 UNTS 65 and art. 9 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDW79): 1249 UNTS 13 provide that a woman's nationality does not automatically change simply because she has married a man of a different nationality.
94. In the Case of the East African Asians expelled from Uganda in 1971, the European Commission on Human Rights concluded that Britain's refusal to admit those holding British nationality amounted to degrading treatment within art. 3 ECHR50: East African Asians v United Kingdom 3 EHRR 76 (1973). The Inter-American Court of Human Rights advised that proposed Costa Rican naturalisation provisions providing the opportunity to naturalise for women but not men spouses of Costa Rican nationals offended the principle of equality enshrined in the American Convention on Human Rights: Inter-American Court of Human Rights, Amendments to the Naturalisation Provisions of the Constitution of Costa Rica (Advisory Opinion), 19 Jan. 1984, No. OC-4/84, reprinted in 5 HumRtsLJ 161 (1984).
95. In the Case of the East African Asians expelled from Uganda in 1971, the European Commission on Human Rights concluded that Britain's refusal to admit those holding British nationality amounted to degrading treatment within art. 3 ECHR50: East African Asians v United Kingdom 3 EHRR 76 (1973). The Inter-American Court of Human Rights advised that proposed Costa Rican naturalisation provisions providing the opportunity to naturalise for women but not men spouses of Costa Rican nationals offended the principle of equality enshrined in the American Convention on Human Rights: Inter-American Court of Human Rights, Amendments to the Naturalisation Provisions of the Constitution of Costa Rica (Advisory Opinion), 19 Jan. 1984, No. OC-4/84, reprinted in 5 HumRtsLJ 161 (1984).
96. Art. 18 of the European Convention on Nationality (n. 86 above) stipulates that in deciding on the granting or retention of nationality, States parties shall take account of the genuine and effective link of the person concerned, the habitual residence of the person concerned at the time of State succession, the will of the person concerned, and the territorial origin of the person concerned. Similarly, the International Law Commission's Draft Articles on Nationality of Natural Persons in Relation to the Succession of States provide that an individual has the right to the nationality of at least one of the States involved in a State succession (art. 1), and that there is a rebuttable presumption that a person resident in the territory which passes to the successor State will gain the nationality of the successor State (art. 4), while emphasising the importance of choice for the person concerned (art. 10); see 'Report of the International Law Commission on the Work of its 49th session', UN GAOR 52nd session, Supp No. 10 (A/52/10), at 14-93.
97. O'Connell, D.P., State Succession in Municipal and International Law, vol 1. Internal Relations, Cambridge: Cambridge University Press, 1967, 3.
98. See, for example, Zemanek, C., State Succession After Decolonisation, Academic de Droit Internationale 116 Recueil de Cours 187, at 227 (1965-III), arguing that the newly decolonised States did not accept the proposition that nationality changed upon a change on sovereignty. O'Connell, n. 91 above, also supports the theory of autonomy.
99. See Brownlie, Principles of Public International Law, n. 80 above, at 659-60. See also Onuma, Y., 'Nationality and Territorial Change: In Search of the Law', 8 YJWorldPublicOrder 1 (1981), arguing that there is a presumption that nationality changes with the change in sovereignty, and that in the cases of newly decolonised States, the colonial State only conferred nationality in cases where statelessness might otherwise result.
100. See Brownlie, Principles of Public International Law, n. 80 above, at 659-60. See also Onuma, Y., 'Nationality and Territorial Change: In Search of the Law', 8 YJWorldPublicOrder 1 (1981), arguing that there is a presumption that nationality changes with the change in sovereignty, and that in the cases of newly decolonised States, the colonial State only conferred nationality in cases where statelessness might otherwise result.
101. Art. 1 Hague Convention, n. 12 above.
102. Nottebohm Case (Liechtenstein v Guatemala) ICJ Rep 1955, 4, at 23.
103. Ibid., at 20. Liechtenstein nationality remained a fact, even though the international consequences of that fact were avoidable: Higgins, R., Problems and Process: International Law and How We Use It, Oxford: Clarendon, 1994, 205. The decision makes sense in that a nationality of convenience should not offer protection, particularly, perhaps, since a claim for diplomatic protection is treated as an injury to the State. However, the test adopted could have led to a different result.
104. Weis, n. 82 above, at 89; Donner, n. 83 above, at 159.
105. Sykes v Cleary and Others (1992) 176 CLR 77, per Brennan J, at 110-13.
106. In this case it was said that the Nazi denationalisation laws should not be recognised as a matter of public policy, since they violated international human rights law: Oppenheimer v Cattermole, House of Lords, [1976] AC 249, 278, per Lord Cross of Chelsea. In fact, the individual involved had the opportunity to regain German nationality voluntarily, but he had not done so.
107. Hathaway, J.C., The Law of Refugee Status, Toronto: Butterworths, 1991, 104-5.
108. Art. 1(A)2 CSR51.
109. CSR51 rights are often qualified by reference to whether the refugee is lawfully present, resident or staying in the country of refuge and they are sometimes limited to the treatment generally applicable to aliens, or the most favoured treatment applicable to aliens, instead of the standard applicable to nationals.
110. Art. 33 CSR51.
111. Art. 1A(2) CSR51, second paragraph.
112. One problematic aspect of the recent trend in State practice of shifting responsibility for asylum seekers to other States is that while there is no right of entry or right to asylum contained in the Refugee Convention, and burden-sharing among countries of refuge is desirable, the potential country of refuge and the country deemed responsible often do not agree on the question of responsibility.
113. On treaty interpretation, see arts. 31 and 32, 1969 Vienna Convention on the Law of Treaties: 1155 UNTS 331.
114. There is nothing in the Nottebohm decision, n. 95 above, that indicates Guatemala was under a duty not to recognise Liechtenstein nationality. There is also debate as to whether, outside the context of the Refugee Convention which expressly envisages that multiple nationalities may be recognised, States should only recognise one of the nationalities held by an individual. Art. 5 of the Hague Convention, n. 12 above, provides that States should only recognise the nationality of the State in which the person is habitually resident or with which she is most closely connected in fact. However, it is debatable whether this obligation is part of customary international law.
115. National courts are generally reluctant to enforce international law when there is no connection with the forum: Higgins, n. 96 above, at 211.
116. In other circumstances, for example where a person is excluded or deported from the country of nationality to which he has a genuine and effective link, not only would the right to return be violated, but the right to privacy and the right to participate in the cultural life of a country might also be violated. See for example, me discussion of the right to private life under ECHR50 in the concurring opinions of Mr Schermers (joined by Mrs Thune) of the European Commission on Human Rights, and of Judge Martens of the European Court on Human Rights in Beldjoudi v France (1992) 14 EHRR 801, at 826, and 840-2, respectively.
117. As Brownlie argues, the idea that norms of jus cogens are non-derogable prohibits acquiescence or recognition of situations in violation of such norms: Brownlie, Principles of Public International Law, n. 80 above, at 514.
118. See the Human Rights Committee's General Comment 15 [27] relating to the position of aliens under the International Covenant on Civil and Political Rights, CCPR/C/21/Rev 1, 19 May 1989.
119. UNGA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) p. 197, UN doc. A/39/51.
120. See Ng v Canada, Communication No. 469/1991, UN doc. CCPR/C/49/D/469/1991 (1994).
121. Art. 23 ICCPR66 guarantees 'protection' of the family. The jurisprudence of the Human Rights Committee, and of the European Court of Human Rights in relation to art. 8 ECHR50, has generally involved criminal deportation of long-term resident non-citizens whose family also reside in, and in many cases are citizens of, the country concerned. See the Human Rights Committee's decision on admissibility in Giosue Canepa v Canada, Communication No. 558/1993, UN doc. CCPR/ C/52/D/558199/3 (1994). European cases include Lukka a UK 9 EHRR 552; Moustaquim v Belgium (1991) 13 EHRR 802; and Beldjoudi v France (1992) 14 EHRR 801. The 1951 Convention does not expressly adopt the principle of family unity, although the Final Act encourages States parties to abide by the principle. UNHCR, Handbook on Criteria and Procedures for Determination of Refugee Status, Geneva, 1979 ('UNHCR Handbook') paras. 184-5.
122. Emphasis supplied.
123. Opinion of Professor Ramos, Faculty of Law of Coimbra and the Catholic University of Portugal, 31 August 1994, at pp. 1-2 [emphasis added]. Copy on file with author.
124. See Nygh, P., n. 14 above, at 3.
125. Ramos opinion, n. 116 above, at 8.
126. Arts. 12 and 13, Portuguese Constitution.
127. Arts. 33 and 44, Portuguese Constitution.
128. Portugal only granted entry to those colonial subjects who were assimilado. Although Britain gave a full right of abode to the inhabitants of dependent territories between 1948 and 1962, it soon reverted to a requirement of 'patriality.' See Goodwin-Gill, G.S., The Movement of Persons Between States, Oxford: Clarendon, 1978, 13. On East African Asians expelled from Uganda, see n. 89 above. Had Britain still been the colonial power, it might have been permissible for it to specify that inhabitants of Uganda be returned to Uganda: see Akehurst, M., 'Uganda Asians and the Thakrar Case', 38 ModLR 72 (1975), at 75.
129. Portugal only granted entry to those colonial subjects who were assimilado. Although Britain gave a full right of abode to the inhabitants of dependent territories between 1948 and 1962, it soon reverted to a requirement of 'patriality.' See Goodwin-Gill, G.S., The Movement of Persons Between States, Oxford: Clarendon, 1978, 13. On East African Asians expelled from Uganda, see n. 89 above. Had Britain still been the colonial power, it might have been permissible for it to specify that inhabitants of Uganda be returned to Uganda: see Akehurst, M., 'Uganda Asians and the Thakrar Case', 38 ModLR 72 (1975), at 75.
130. Akehurst, n. 121 above; Plender, R., International Migration Law, Dordrecht; Boston; London: Martinus Nijhoff, 2nd rev. ed. 1988, at 139-40.
131. The United Kingdom and the Netherlands -both of which made declarations confirming that the provisions of the Covenant extended to their dependent territories -entered reservations to art. 12(4). It should be noted that it is not universally agreed that prohibiting the entry of colonial inhabitants to 'metropolitan' territory contravenes art. 12(4) and that it therefore requires a reservation: compare Nowak, M., U.N. Covenant on Civil and Political Rights: CCPR Commentary, Kehl; Strasbourg; Arlington: N.P. Engel, 1993, at 220, with Plender, n. 122 above, at 142.
132. Art. 8 provides that international law is an integral part of Portuguese law. Further, art. 16 provides that Constitutional rights do not exclude rights flowing from international law.
133. Letter to the Department of Immigration and Multicultural Affairs from Portuguese Ambassador, 1 Jun. 1995: referred to in RRT decision V93/01124 (2 June 1997) [available on Australian Legal Information Institute (AustLII) internet site: http://www.austlii.edu.au/]. Copy on file with author.
134. Letter to the RRT from Portuguese Ambassador, 15 Nov. 1995, referred to in RRT decision V93/001124, 2 Jun. 1997 [available on the Australian Legal Information Institute (AustLII): http:// www.ausdii.edu.au/].
135. File note by Mr L. Bugden, 8 Aug. 1995, cited in RRT decision V96/0476, 15 Aug. 1996. Copy on file with author. See also Nygh, n. 14 above.
136. Ibid.
137. See Ceresa, M., 'Portugal denies all Timorese arc citizens,' The Australian, 12 Oct. 1995, p. 2; MacDonald, J., 'Timor policy "flawed": Portugal,' The Age, 19 Feb. 1998, p. A.9.
138. See Ceresa, M., 'Portugal denies all Timorese arc citizens,' The Australian, 12 Oct. 1995, p. 2; MacDonald, J., 'Timor policy "flawed": Portugal,' The Age, 19 Feb. 1998, p. A.9.
139. Press Communique, Embassy of Portugal, 3 Jun. 1998. (Copy on file with author.)
140. In fact, paragraph 5 of the Declaration on the Granting of Independence to Colonial Territories and Peoples, n. 43 above, requires that 'immediate steps' be taken to transfer 'all powers' to the peoples of non-self-governing territories. However, it is accepted that independence is simply one option for the people of a non-self-governing territory, and this is acknowledged in principle VI of the factors annexed to the Declaration that guide States in relation to which territories information should be supplied under art. 73 of the Charter.
141. As stated by Arbitrator Huber in the Island of Palmas case, the validity of territorial tide must be assessed according to the international law prevailing at the time it was acquired, but retention of rights must be assessed in light of current legal requirements: 2 RIAA 829, 845.
142. The Portuguese memorial in the Timor case (n. 50 above) describes its authority over East Timor as being 'limited by the sovereignty of [the] people': Portuguese memorial, para. 5.42.
143. The power given by the Charter under Chapter XI is clearly the power of a trustee. The power derives expressly from the concept of "a sacred trust", thus underlining its fiduciary character.' Timor case, n. 50 above, per Weeramantry J, at 189.
144. See the discussion of para. 6 of the Declaration on Friendly Relations in Section 2 above.
145. Nauru, administered as a trust territory by Australia until it gained its independence, alleged that Australia had violated its duty to respect the Nauruan people's permanent sovereignty over natural resources by mining phosphate without adequate remuneration for the Nauruan people or sufficient attention to the environmental rehabilitation of the land. See generally Weeramantry, C.G., Nauru: Environmental Damage Under International Trusteeship, Melbourne: Oxford University Press, 1992; Anghie, A., 'The Heart of My Home: Colonialism, Environmental Damage, and the Nauru [Nauru v. Australia, 1992 I.C.J. 240] Case' 34 Harv. Int'l L.J. 445 (1993). Australia settled the claim, thereby avoiding a ruling by the ICJ as to the precise details of a trustee's responsibility in this regard.
146. Nauru, administered as a trust territory by Australia until it gained its independence, alleged that Australia had violated its duty to respect the Nauruan people's permanent sovereignty over natural resources by mining phosphate without adequate remuneration for the Nauruan people or sufficient attention to the environmental rehabilitation of the land. See generally Weeramantry, C.G., Nauru: Environmental Damage Under International Trusteeship, Melbourne: Oxford University Press, 1992; Anghie, A., 'The Heart of My Home: Colonialism, Environmental Damage, and the Nauru [Nauru v. Australia, 1992 I.C.J. 240] Case' 34 Harv. Int'l L.J. 445 (1993). Australia settled the claim, thereby avoiding a ruling by the ICJ as to the precise details of a trustee's responsibility in this regard.
147. The terms of art. 73(b) of the Charter itself impose limitations: Brownlie, I., 'The Relations of Nationality in Public International Law', 39 BYIL 284 (1963), at 317.
148. Onuma, n. 93 above, writes that in practice colonial powers only conferred their nationality where statelessness would result.
149. Cf. the acknowledgement of the importance of territorial links and the wishes of the individual concerned in situations of (legal) state succession in the European Convention on Nationality (n. 86 above) and the ILC's Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (n. 90 above).
150. The General Assembly has expressed the view that colonial practices permitting the influx of the colonial power's nationals and other foreigners to non-self-governing territories, and the dislocation, deportation and transfer of the indigenous peoples endangers the right to permanent sovereignty over natural resources: resns. 2105(XX), 2144(XXI), 2189 (XXI), 2326(XXI), 2465(XXII), and 2548(XXIV). See United Nations Secretary-General, 'Repertory of Practice of United Nations Organs' Supplement No. 4, Vol II, Articles 55-111 of the Charter (covering the period 1 September 1966-31 December 1969), New York: United Nations, 1982, paras. 112-22. As has been noted in relation to an Australian proposal to resettle the entire population of Nauru in Australia during the period in which Australia administered Nauru as a trust territory and mined it until the island's very habitability was threatened: '[i]f the Nauruan people were brought into Australia as Australian citizens and then melted away into the Australian community, the right of self-determination would no longer be exercisable.' Weeramantry, n. 136 above, at 300-1.
151. See n. 60 above.
152. A resolution of the Council of the League of Nations (22 Apr. 1923, Official Journal, 1923, 604) declared that the inhabitants of the territories of B and C mandates did not obtain the nationality of the mandatory. Trusteeship was generally governed by agreements specific to the trust territory, which often did not contain specific provisions regarding nationality, but as Brownlie writes, '[f]or various purposes of the law [the inhabitants] are attributed to the territory itself; if they were not the sacred trust and attendant obligations would be easily avoided.' Brownlie, 'The Relations of Nationality,' n. 137 above, at 316.
153. A resolution of the Council of the League of Nations (22 Apr. 1923, Official Journal, 1923, 604) declared that the inhabitants of the territories of B and C mandates did not obtain the nationality of the mandatory. Trusteeship was generally governed by agreements specific to the trust territory, which often did not contain specific provisions regarding nationality, but as Brownlie writes, '[f]or various purposes of the law [the inhabitants] are attributed to the territory itself; if they were not the sacred trust and attendant obligations would be easily avoided.' Brownlie, 'The Relations of Nationality,' n. 137 above, at 316.
154. Goodwin-Gill refers to art. 1 of the Trusteeship agreement for Italian Somaliland, which provided that 'the Administering Authority shall take the necessary steps to provide for the population of the territory a status of citizenship of the territoiy [emphasis added] and to ensure their diplomatic and consular protection when outside the limits of the territory and of the territory of the Administering Authority:' 118 UNTS 255, cited in Goodwin-Gill, G.S., Opinion regarding East Timorese nationality, 14 Mar. 1996. (Copy on file with author.)
155. Robinson, N., Convention Relating to the Status of Refugees: Its History, Contents and Interpretation, New York: Institute of Jewish Affairs, 1953, 53-4.
156. The General Assembly's primacy in this area was established early in the Charter's history. Although General Assembly resolutions are generally only recommendatory pursuant to art. 10 of the Charter, the General Assembly is competent to determine whether a territory is a non-self-governing territory for which provision of information under art. 73 of the Charter is required, and this competence was exercised through the listing of territories administered by Portugal as non-self-governing territories over Portugal's objections. See Castaneda, J., Legal effects of United Nations Resolutions, New York: Columbia University Press, 1969, 121, 127-8; Hasan Ahmad, S., The United Nations and the Colonies, Bombay; New York: Asia Publishing House, 1974, at 336, 337; El Ayouty, Y., The United Nations and Decolonisation: the Role of Afro-Asia, The Hague: Martinus Nijhoff, 1971, 228-30.
157. The General Assembly's primacy in this area was established early in the Charter's history. Although General Assembly resolutions are generally only recommendatory pursuant to art. 10 of the Charter, the General Assembly is competent to determine whether a territory is a non-self-governing territory for which provision of information under art. 73 of the Charter is required, and this competence was exercised through the listing of territories administered by Portugal as non-self-governing territories over Portugal's objections. See Castaneda, J., Legal effects of United Nations Resolutions, New York: Columbia University Press, 1969, 121, 127-8; Hasan Ahmad, S., The United Nations and the Colonies, Bombay; New York: Asia Publishing House, 1974, at 336, 337; El Ayouty, Y., The United Nations and Decolonisation: the Role of Afro-Asia, The Hague: Martinus Nijhoff, 1971, 228-30.
158. The General Assembly's primacy in this area was established early in the Charter's history. Although General Assembly resolutions are generally only recommendatory pursuant to art. 10 of the Charter, the General Assembly is competent to determine whether a territory is a non-self-governing territory for which provision of information under art. 73 of the Charter is required, and this competence was exercised through the listing of territories administered by Portugal as non-self-governing territories over Portugal's objections. See Castaneda, J., Legal effects of United Nations Resolutions, New York: Columbia
159. Conforti writes that 'the evolution that has taken place in the United Nations system regarding the non-self-governing territories has absorbed and made obsolete the trusteeship system': Conforti, n. 42 above, at 252. See also Senate Standing Committee on Foreign Affairs and Defence, 'United Nations Involvement in Australia's Territories,' Canberra: Australian Government Printing Service, 1975, p. 27, paras. 2.9 & 2.10. As might be expected, given Australia's history as a colonial power, this report implies that the UN exceeded its mandate. 147 See for example, Crawford, n. 74 above, at 363-4. This view appears to rest on the fact that sovereignty over non-self-governing territories was acquired under then-applicable rules relating to territorial acquisition, and on the limited nature of art. 73 of the Charter (non-self-governing territories) when compared with art. 76 (trust territories). The colonial powers thought that Chapter XI merely provided for enlightened colonial administration, while the anti-colonial powers perceived a fundamental link between Chapter XI and Chapter XII based on the notion of trust referred to in both Chapters. See generally, Hasan Ahmad, n. 145 above; El Ayouty, n. 145 above.
160. International Status of South West Africa, 1950 ICJ Rep 128, per Judge McNair at 150.
161. See Dore, I., The International Mandate System and Namibia, Boulder, Colorado: Westview Press, 1985, at 39. This meant that attempts by States such as South Africa to treat the 'C' mandates (the inhabitants of which were supposedly 'less advanced' than those of 'A' and 'B' mandates) as annexed territory failed, even though it was permissible to administer the mandated territory as part of the administering authority's territory. In the case of trust territories, it was accepted that the term 'trust' carried the usual connotations of acting for a beneficiary: see Oppenheim's International Law, London: Longmans, 1955, 8th ed., H. Lauterpacht, at 236-7.
162. See Dore, I., The International Mandate System and Namibia, Boulder, Colorado: Westview Press, 1985, at 39. This meant that attempts by States such as South Africa to treat the 'C' mandates (the inhabitants of which were supposedly 'less advanced' than those of 'A' and 'B' mandates) as annexed territory failed, even though it was permissible to administer the mandated territory as part of the administering authority's territory. In the case of trust territories, it was accepted that the term 'trust' carried the usual connotations of acting for a beneficiary: see Oppenheim's International Law, London: Longmans, 1955, 8th ed., H. Lauterpacht, at 236-7.
163. For example, see the emphasis placed on the overriding effect of the right to self-determination in the ICJ's ruling in the Western Sahara Case (n. 46 above) in Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law: United Mations Action in the Question of Southern Rhodesia, Dordrecht; Boston; London: Martinus Nijhoff, 1990, at 157.
164. See paragraph 2 of the Commission's commentary on its draft article 14 on succession of states in respect of matters other than treaties, Yearbook of the International Law Commission (1981), vol. II (Part Two), p. 37. Nevertheless, despite recognising the difference, the Commission decided in relation to its work on the effects of state succession on nationality, that future cases of decolonisation should be governed by the rules applicable in other cases of state succession: See paragraph 3 of the Draft Article 19 of the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States 'Report of the International Law Commission on the Work of its 49th session,' UN GAOR 52nd session, Supp No. 10 (A/52/10), at 73.
165. See text following n. 46 above.
166. See n. 47 above.
167. Advice from the Chief General Counsel of the Australian Attorney-General's Department, 25 Apr. 1995. Copy on file with author.
168. Ibid., at para. 7.
169. (1952) ILR 19, No. 56.
170. n. 154 above, para. 6.
171. Ibid.
172. Ibid. In Horta v Commonwealth (1994) 123 ALR 1, the Australian High Court held that Australian courts could not challenge the executive's recognition of Indonesian sovereignty.
173. Advice from the Chief General Counsel of the Australian Attorney-General's Department, 20 Sept. 1995. Copy on file with author.
174. Ibid., at para. 6.
175. Ibid., at para. 7. Thus the considerations raised in Sykes v Cleary (n. 98 above) were said to be irrelevant.
176. Ibid., at para. 8, citing Weis, n. 82 above, 148.
177. Ibid., at para. 8.
178. Ibid., at paras. 14, 16.
179. Jong Kim Koe, n. 15 above.
180. For example, the Court noted that Mr Jong's alternative country of nationality (Portugal) was on the other side of the world: Jong Kim Koe, n. 15 above, at 707.
181. The Court simply noted that the conclusion that the applicant is an Indonesian national 'seemed clearly right' and referred to his fear of persecution 'in Indonesia (including East Timor)': n. 15 above, at 3.
182. Ibid.
183. Cf. Nottebohm, n. 95 above, at 24.
184. Art. 15 UDHR48 speaks of a right to change one's nationality, but it does not speak of a duty to change it in any particular context, while forcible impositions of nationality have not been recognised in some cases because of infringement of the individual's rights: see n. 83 above.
185. Kathova v Canada (1997) 40 Imm.L.R. (2d) 216. But see Bouianova v Canada (1993) 67 F.T.R. 74 (Fed.T.D.). In Bouianova, the Court decided that as the right to obtain Russian nationality was a mere formality that involved presentation of a former USSR passport for a stamp, the asylum seeker, an Estonian resident of Russian ethnic origin, should be required to apply for Russian citizenship. If Bouianova and related jurisprudence was to be found persuasive and followed by Australian courts, it is questionable whether the procedure relating to applications for Portuguese nationality could be described as a 'mere formality.'
186. The submissions are described at p. 4 of the Court's judgment: Jong Kim Koe, n. 15 above.
187. The Court dealt with this submission under the rubric of international recognition of the acquisition of Portuguese nationality: ibid., at 5-6.
188. Ibid.
189. Ibid., at 6.
190. Ibid.
191. See the submissions by Australia referred to in n. 250 below.
192. n. 15 above, at 7.
193. Ibid., at 6.
194. Ibid.
195. UNHCR Handbook, n. 114 above, at para. 107.
196. See Goodwin-Gill, G.S., The Refugee in International Law, Oxford; New York: Clarendon Press, 2nd ed., 1996, at 16.
197. Cf. UNHCR Handbook, n. 114 above, at para. 99.
198. Grahl-Madsen, A., The Status of Refugees in International Law, Leyden: A.W. Sijthoff, 1966, 259.
199. Conclusion No. 15, adopted by the UNHCR Executive Committee (ExCom), states that '[r]egard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State': Conclusions adopted by the Executive Committee on International Protection of Refugees, No. 15 (XXX), Refugees without an asylum country, para. (h)(iv), Report of the 30th Session, UN doc. A/AC.96/572, para. 72 (2).
200. For a critical review of the practice of returning asylum seekers to the 'responsible State' see Goodwin-Gill, The Refugee in International Law, n. 183 above, 332-4. See also Amnesty's damning report on Britain's 'safe third country' legislation: Dunstan, R., 'Playing Human Pinball: The Amnesty International United Kingdom Section Report on UK Home Office "Safe Third Country" Practice,' 7 IJRL 606 (1995).
201. For a critical review of the practice of returning asylum seekers to the 'responsible State' see Goodwin-Gill, The Refugee in International Law, n. 183 above, 332-4. See also Amnesty's damning report on Britain's 'safe third country' legislation: Dunstan, R., 'Playing Human Pinball: The Amnesty International United Kingdom Section Report on UK Home Office "Safe Third Country" Practice,' 7 IJRL 606 (1995).
202. Crawford, J. and Hyndman, P., 'Three Heresies in the Application of the Refugee Convention,' 1 IJRL 155 (1989), at 171.
203. See generally, Melander, G., Refugees in Orbit, Geneva: International University Exchange, 1978.
204. Cf. the European Commission on Human Rights' conclusion that the UK's refusal to admit East African Asians on racial grounds amounted to degrading treatment (n. 89 above), and the Human Rights Committee's view that considerations relating to degrading treatment may have an impact on matters relating to entry (n. 111 above).
205. Amnesty International, n. 33 above, at 27.
206. Art. 40 CSR51 provides that parties may extend the operation of the treaty to dependent territories if they so wish, but Portugal made no such declaration regarding its dependent territories. However, non-refoulement probably represents customary international law, at least in the sense of temporary refuge: See Goodwin-Gill, The Refugee in International Law, n. 183 above, at 167-70.
207. According to Amnesty International, more than 100 asylum seekers have scaled the walls of embassies in Jakarta since September 1993, while 3 boat-loads have attempted to reach Australia, two unsuccessfully: Amnesty International, n. 33 above, at 28.
208. An embassy is not considered a territorial enclave. Rather, it is considered inviolable and immune from the enforcement jurisdiction of the host State pursuant to a functional theory of immunity; see art. 3, 1961 Vienna Convention on Diplomatic Relations: 500 UNTS 95. An asylum seeker at a foreign embassy in their home country does not qualify for refugee status as he or she has not crossed an international border.
209. Country Information Report, No. 379/97, Cable No. PA3252, 11 Jul. 1997. (Copy on file with author.)
210. Submissions for appellant (copy on file with author); also reported in 'East Timor Case Starts in Federal Court Monday,' Agence France Presse, 22 Sept. 1996.
211. Ibid.
212. Ramos Opinion, n. 116 above, at 6.
213. Amnesty International, n. 33 above, at 29.
214. Nygh, n. 14 above, at 7.
215. See Section 4 above.
216. n. 15 above.
217. The Court held that while there was a good deal of evidence concerning effectiveness before the decision-maker, the issue of effectiveness had not been addressed as a 'distinct' issue: ibid., at 708.
218. The Court referred to Hathaway's view that facts calling into question protection against return indicate that the nationality is ineffective (Jong Kim Koe, n. 15 above, at 706) and later to 'relevantly ineffective nationality' [emphasis added] (ibid., at 707).
219. The Court referred to Hathaway's view that facts calling into question protection against return indicate that the nationality is ineffective (Jong Kim Koe, n. 15 above, at 706) and later to 'relevantly ineffective nationality' [emphasis added] (ibid., at 707).
220. The Court stated that the question of effectiveness 'may lead to an inquiry as to the "availability" of protection': ibid., at 706.
221. Ibid., at 707.
222. Ibid.
223. Ibid.
224. Available through the Australian Legal Information Institute (AustLII): http:// www.austlii.edu.au/. Asylum seeker's name withheld; no page or paragraph numbers supplied. The relevant issue is dealt with under the heading 'Refugee Status of the Applicant as a Portuguese national.'
225. Available through the Australian Legal Information Institute (AustLII): http:// www.austlii.edu.au/. Asylum seeker's name withheld; no page or paragraph numbers supplied. The relevant issue is dealt with under the heading 'The Effectiveness of Portuguese nationality.'
226. Available through the Australian Legal Information Institute (AustLII): http:// www.austlii.edu.au/. Asylum seeker's name withheld; no page or paragraph numbers supplied. The relevant issue is dealt with under the heading 'The Effectiveness of Portuguese nationality.'
227. Kim Jong Koe, RRT reference, N97/16368, 8 May 1998. (Copy on file with author.)
228. Ibid., at 4.
229. Ibid., at 19.
230. Ibid., at 18.
231. Ibid., at 20.
232. Ibid., at 22.
233. Ibid., at 23.
234. n. 15 above.
235. Lay Kon Tji v Minister for Immigration and Multicultural Affairs, Finkelstein J, Federal Court, No. VG 331 of 1996; see below, section 6.4.
236. n. 15 above.
237. n. 15 above.
238. n. 195 above.
239. Mr Jong may no longer hold Indonesian nationality as he has been out of East Timor and Indonesia for 5 years, so he may not be eligible to travel on an Indonesian passport, although in an earlier decision, RRT ref BN93/02196 (5 Jul. 1994), it was found that the Indonesian authorities had indicated that Indonesians in Australia may renew their passports as long as they have proof of their nationality. In any event, it is not clear that an East Timorese should be required to approach Indonesian diplomatic and consular staff if he has a well-founded fear of persecution, particularly since many East Timorese fear that their activities in Australia will be monitored by Indonesian authorities.
240. Jong Kim Koe, n. 15 above, at 9.
241. Minister for Immigration and Ethnic Affairs u Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] 136 ALR 481.
242. The grounds for review were curtailed by the removal of the jurisdiction of the Federal Court over refugee status determination from the Administrative Decisions (Judicial Review) Act (1977) Cth and the introduction of Part 8 into the Migration Act (1958) Cth.
243. Lay Kon Tji v Minister for Immigration and Ethnic Affairs (Federal Court, per Finkelstein J, unreported, copy on file with author). The Department of Immigration and Ethnic Affairs is now called the Department of Immigration and Multicultural Affairs.
244. n. 15 above.
245. Lay Kon Tji, n. 228 above.
246. Ibid., at 15.
247. Ibid. For the text of para. 107, see n. 184 above and accompanying text.
248. Ibid., at 16.
249. Ibid., at 14 and 16.
250. Ibid., at 18.
251. Ibid.
252. See correspondence discussed in Section 4 above.
253. Lay Kon Tji, n. 228 above, at 22-3.
254. Ibid., at 23.
255. An extract from the communiqué appears in Section 4 above.
256. Lay Kon Tji, n. 228 above, at 26.
257. Ibid., at 25.
258. Sec text accompanying n. 158 above.
259. Beginning life as the 'Stimson doctrine,' the practice of non-recognition has developed into a duty not to recognise forcible territorial acquisitions. This duty of non-recognition is enshrined in the Declaration on Friendly Relations (n. 45 above) which provides that '[n]o territorial acquisition resulting from the threat or use of force shall be recognised as legal.' As stated by Judge Skubiszewski in the Timor case, this obligation is 'self-executory,' meaning that it docs not require express reiteration in a Security Council resolution: Timor case, n. 50 above, per Skubiszewski J, p. 226 at paras. 124, 130.
260. As Brownlie writes, non-recognition is a necessary adjunct to enforcement of the Charter: Brownlie, I., International Law and the Use of Force by States, Oxford: Clarendon, 1963, 418-23. The principle ex injuria non oritur jus also leads to the conclusion that facts arising from a violation of international law should not be accorded recognition: see Lauterpacht, H., Recognition in International Law, Cambridge: Cambridge University Press, 1947, 412-13, 421-5. The status of particular norms as part of the jus cogens also logically requires non-recognition as a corollary to any breach of those norms: Hainikanen, L., 'The Case of East Timor from the Perspective of jus cogens', in International Law and the Question of East Timor, n. 36 above, 103; Dugard, J., Recognition and the United Nations, Cambridge: Grotius, 1987.
261. As Brownlie writes, non-recognition is a necessary adjunct to enforcement of the Charter: Brownlie, I., International Law and the Use of Force by States, Oxford: Clarendon, 1963, 418-23. The principle ex injuria non oritur jus also leads to the conclusion that facts arising from a violation of international law should not be accorded recognition: see Lauterpacht, H., Recognition in International Law, Cambridge: Cambridge University Press, 1947, 412-13, 421-5. The status of particular norms as part of the jus cogens also logically requires non-recognition as a corollary to any breach of those norms: Hainikanen, L., 'The Case of East Timor from the Perspective of jus cogens', in International Law and the Question of East Timor, n. 36 above, 103; Dugard, J., Recognition and the United Nations, Cambridge: Grotius, 1987.
262. As Brownlie writes, non-recognition is a necessary adjunct to enforcement of the Charter: Brownlie, I., International Law and the Use of Force by States, Oxford: Clarendon, 1963, 418-23. The principle ex injuria non oritur jus also leads to the conclusion that facts arising from a violation of international law should not be accorded recognition: see Lauterpacht, H., Recognition in International Law, Cambridge: Cambridge University Press, 1947, 412-13, 421-5. The status of particular norms as part of the jus cogens also logically requires non-recognition as a corollary to any breach of those norms: Hainikanen, L., 'The Case of East Timor from the Perspective of jus cogens', in International Law and the Question of East Timor, n. 36 above, 103; Dugard, J., Recognition and the United Nations, Cambridge: Grotius, 1987.
263. As Brownlie writes, non-recognition is a necessary adjunct to enforcement of the Charter: Brownlie, I., International Law and the Use of Force by States, Oxford: Clarendon, 1963, 418-23. The principle ex injuria non oritur jus also leads to the conclusion that facts arising from a violation of international law should not be accorded recognition: see Lauterpacht, H., Recognition in International Law, Cambridge: Cambridge University Press, 1947, 412-13, 421-5. The status of particular norms as part of the jus cogens also logically requires non-recognition as a corollary to any breach of those norms: Hainikanen, L., 'The Case of East Timor from the Perspective of jus cogens', in International Law and the Question of East Timor, n. 36 above, 103; Dugard, J., Recognition and the United Nations, Cambridge: Grotius, 1987.
264. It is commonly accepted that self-determination, at least in the colonial context, is a norm of jus cogens and that it has an erga, omnes character. See for example, Cassese, A., International Law in a Divided World Oxford: Clarendon Press; New York: Oxford University Press, 1986, at 95 (re erga omnes) and at 136 (re jus cogens). The ICJ accepts that self-determination is a norm of an erga omnes character: Timor case, n. 50 above, majority opinion, para. 29. For the argument that situations violating self-determination should not be recognised, sec Cassese, A., Self-Determination of Peoples: a Legal Reappraisal, Cambridge, New York: Cambridge University Press, 1995, at 229-30; Shaw, M., Title to Territory in Africa: International Legal Issues, Oxford: Clarendon Press, 1986, 166-7. Regarding non-recognition of the situation in East Timor particularly, see the opinion of Judge Weeramantry in the Timor case, n. 50 above, at 172, 193-204, 213-16.
265. It is commonly accepted that self-determination, at least in the colonial context, is a norm of jus cogens and that it has an erga, omnes character. See for example, Cassese, A., International Law in a Divided World Oxford: Clarendon Press; New York: Oxford University Press, 1986, at 95 (re erga omnes) and at 136 (re jus cogens). The ICJ accepts that self-determination is a norm of an erga omnes character: Timor case, n. 50 above, majority opinion, para. 29. For the argument that situations violating self-determination should not be recognised, sec Cassese, A., Self-Determination of Peoples: a Legal Reappraisal, Cambridge, New York: Cambridge University Press, 1995, at 229-30; Shaw, M., Title to Territory in Africa: International Legal Issues, Oxford: Clarendon Press, 1986, 166-7. Regarding non-recognition of the situation in East Timor particularly, see the opinion of Judge Weeramantry in the Timor case, n. 50 above, at 172, 193-204, 213-16.
266. It is commonly accepted that self-determination, at least in the colonial context, is a norm of jus cogens and that it has an erga, omnes character. See for example, Cassese, A., International Law in a Divided World Oxford: Clarendon Press; New York: Oxford University Press, 1986, at 95 (re erga omnes) and at 136 (re jus cogens). The ICJ accepts that self-determination is a norm of an erga omnes character: Timor case, n. 50 above, majority opinion, para. 29. For the argument that situations violating self-determination should not be recognised, sec Cassese, A., Self-Determination of Peoples: a Legal Reappraisal, Cambridge, New York: Cambridge University Press, 1995, at 229-30; Shaw, M., Title to Territory in Africa: International Legal Issues, Oxford: Clarendon Press, 1986, 166-7. Regarding non-recognition of the situation in East Timor particularly, see the opinion of Judge Weeramantry in the Timor case, n. 50 above, at 172, 193-204, 213-16.
267. Dugard, n. 230 above, at 135.
268. Ibid., at 166.
269. For a description of the resolutions, see Section 2 above.
270. Security Council Resolution 384 (1975) 'called for' the immediate withdrawal of Indonesian armed forces and for East Timorese self-determination. The Council did not say it was making a 'decision' that is binding under art. 25 of the Charter, nor did it state that it was acting under Chapter VII of the Charter. Nevertheless, both dissentients in the Timor case challenged the idea that binding obligations were not invoked by the relevant resolutions: Timor case, n. 50 above per Weeramantry J, at 205-8; per Skubiszewski J, at para. 126.
271. The Declaration on Friendly Relations, n. 45 supra, states that '[e]very State has the duty to refrain from any forcible action which deprives people referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.' Art. 2(4) of the UN Charter prohibits uses of force incompatible with the purposes of the UN and developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples is listed as a purpose of the UN in Art. 1 (2).
272. Cassese, Self-Determination of Peoples, n. 231 above, at 227.
273. Cf. Dinstein who writes that even the most ardent proponents of non-recognition acknowledge that recognition of effectiveness may be necessary in some cases according to the principle ex factis jus oritur. Dinstein, Y., War, Aggression and Self Defence, Cambridge: Grotius Publications, 1988, at 160-1.
274. n. 156 above.
275. For the facts of this case, see Donner, n. 83 above, at 161.
276. n. 156 above, at 321.
277. Ibid.
278. Donner, n. 83 above, at 160-1.
279. In the Koh-I-Noor Case, the Belgian Court of Appeals in Brussels held, in part, that since the German annexation of Bohemia-Moravia had never been recognised by Belgium, 'the consequences of this annexation with regard to the question of nationality cannot be recognised either': (1959) 47 ILR 31, at 35. In Amato Narodni Podnik v Julius Keilwerth Musikinstrumentenfabrik, the District Court of the Hague held that the defendant in the case was not a German national because the German-Czechoslovak Nationality Treaty of November 20, 1938, was invalid. The Court said that the treaty was invalid because of 'clear and unlawful duress, the effects of which Czechs could not escape, exercised by Germany against Czechoslovakia': (1957) 24 ILR 435, 437. In Ratz-Lienert and Klein v Nederlands Beheers-Institut, the Dutch Judicial Division of the Council for the Restoration of Legal Rights found that as the annexation of Sudetenland by Germany was invalid, German nationality conferred thereby could not be recognised: (1957) 24 ILR 536. For a description of both lines of authority, that is, the case-law relying on effectiveness and the case-law relying on legal sovereignty, see Brownlie, 'The Relations of Nationality', n. 137 above.
280. In the Koh-I-Noor Case, the Belgian Court of Appeals in Brussels held, in part, that since the German annexation of Bohemia-Moravia had never been recognised by Belgium, 'the consequences of this annexation with regard to the question of nationality cannot be recognised either': (1959) 47 ILR 31, at 35. In Amato Narodni Podnik v Julius Keilwerth Musikinstrumentenfabrik, the District Court of the Hague held that the defendant in the case was not a German national because the German-Czechoslovak Nationality Treaty of November 20, 1938, was invalid. The Court said that the treaty was invalid because of 'clear and unlawful duress, the effects of which Czechs could not escape, exercised by Germany against Czechoslovakia': (1957) 24 ILR 435, 437. In Ratz-Lienert and Klein v Nederlands Beheers-Institut, the Dutch Judicial Division of the Council for the Restoration of Legal Rights found that as the annexation of Sudetenland by Germany was invalid, German nationality conferred thereby could not be recognised: (1957) 24 ILR 536. For a description of both lines of authority, that is, the case-law relying on effectiveness and the case-law relying on legal sovereignty, see Brownlie, 'The Relations of Nationality', n. 137 above.
281. In the Koh-I-Noor Case, the Belgian Court of Appeals in Brussels held, in part, that since the German annexation of Bohemia-Moravia had never been recognised by Belgium, 'the consequences of this annexation with regard to the question of nationality cannot be recognised either': (1959) 47 ILR 31, at 35. In Amato Narodni Podnik v Julius Keilwerth Musikinstrumentenfabrik, the District Court of the Hague held that the defendant in the case was not a German national because the German-Czechoslovak Nationality Treaty of November 20, 1938, was invalid. The Court said that the treaty was invalid because of 'clear and unlawful duress, the effects of which Czechs could not escape, exercised by Germany against Czechoslovakia': (1957) 24 ILR 435, 437. In Ratz-Lienert and Klein v Nederlands Beheers-Institut, the Dutch Judicial Division of the Council for the Restoration of Legal Rights found that as the annexation of Sudetenland by Germany was invalid, German nationality conferred thereby could not be recognised: (1957) 24 ILR 536. For a description of both lines of authority, that is, the case-law relying on effectiveness and the case-law relying on legal sovereignty, see Brownlie, 'The Relations of Nationality', n. 137 above.
282. It is precisely because international law is such a weak system that jurists like Prosper Weil have questioned the utility of establishing some norms as jus cogens. See Weil, P., 'Towards Relative Normativity in International Law', 77 AJIL 413 (1983).
283. Sec the debate between Franck and Henkin: Franck, T., 'Who Killed Article 2(4)?', 64 AJIL 809 (1970); Henkin, L., 'The Reports of the Death of Article 2(4) are Greatly Exaggerated', 65 AJIL 544 (1971).
284. Sec the debate between Franck and Henkin: Franck, T., 'Who Killed Article 2(4)?', 64 AJIL 809 (1970); Henkin, L., 'The Reports of the Death of Article 2(4) are Greatly Exaggerated', 65 AJIL 544 (1971).
285. Self-determination has become part of the canon of human rights law and is included in common article one of the two universal covenants on human rights, ICCPR66 and ICESC66.
286. In particular, see UNGA res. 31/53 (1976), para. 5, and UNGA res. 32/34 (1977), at para. 3. It is on this basis that East Timor is still on the agenda of the Decolonisation Committee. See for example, the 1995 Secretariat working paper for the Decolonisation Committee: UN doc. A/ AC.109/2026.
287. Noted in the Timor case, n. 50 above, majority opinion, at para. 21.
288. Australia submitted that in such cases, the rights of the administering power 'depend entirely on the authority specifically conferred on it by the United Nations.' Australian Memorial, 116. (Copy on File with author.) Indeed, Australia's submissions went even further than this, implying that Portugal had no ability or legal authority to do anything on behalf of the East Timorese. Australia submitted that UN acknowledegment of a State as 'administering power' did not confer any specific juridical status on it: Dr C. Staker, 132i. Australia (First Oral Round of Pleadings): CR95/10, Thursday, 9 Feb. 1995, morning, reproduced in Krieger, n. 39 above, p. 390. Australia also submitted that 'Portugal can point to no basis on which its position can be identified with that of the people of East Timor': Australian Memorial at p. 111.
289. The majority stated that they did not think it could be inferred 'from the sole fact that ... resolutions of the General Assembly and the Security Council refer to Portugal as the administering Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor.' Timor case, n. 50 above, majority opinion at para. 32 [italics supplied]. The majority's comments do not necessarily mean that it is permissible to recognise control achieved through a violation of self-determination, since the Court could not rule on Indonesia's rights. The question considered by the Court was simply whether the relevant resolutions could be taken as 'givens' upon which the dispute between the parties could be decided, therefore avoiding the necessity of ruling on Indonesia's rights. The Court thought that the language was insufficiently clear for this to be the case. Of course, to the extent that such resolutions merely reflect pre-existing obligations at international law that bind Australia, the Court's basis for avoiding the merits of the case is open to criticism. For criticisms of the Court's reliance on the doctrine of indispensable third parties, sec Chinkin, C., 'Rights But no Remedies - Legal Implications of the East Timor Decision', in Brewster, M., & Shearer, I.A., The East Timor Case in the ICJ, Martin Place Papers No. 4, Sydney, Australia, 1995 (conference proceedings, page numbers not supplied); Klein, N., 'Multilateral disputes and the doctrine of necessary parties in the East Timor Case (Case Concerning East Timor (Portugal v. Australia), General List No. 84, 1995 ICJ (June 30, 1995))' 21 Yale JIL 305 (1996).
290. The majority stated that they did not think it could be inferred 'from the sole fact that ... resolutions of the General Assembly and the Security Council refer to Portugal as the administering Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor.' Timor case, n. 50 above, majority opinion at para. 32 [italics supplied]. The majority's comments do not necessarily mean that it is permissible to recognise control achieved through a violation of self-determination, since the Court could not rule on Indonesia's rights. The question considered by the Court was simply whether the relevant resolutions could be taken as 'givens' upon which the dispute between the parties could be decided, therefore avoiding the necessity of ruling on Indonesia's rights. The Court thought that the language was insufficiently clear for this to be the case. Of course, to the extent that such resolutions merely reflect pre-existing obligations at international law that bind Australia, the Court's basis for avoiding the merits of the case is open to criticism. For criticisms of the Court's reliance on the doctrine of indispensable third parties, sec Chinkin, C., 'Rights But no Remedies - Legal Implications of the East Timor Decision', in Brewster, M., & Shearer, I.A., The East Timor Case in the ICJ, Martin Place Papers No. 4, Sydney, Australia, 1995 (conference proceedings, page numbers not supplied); Klein, N., 'Multilateral disputes and the doctrine of necessary parties in the East Timor Case (Case Concerning East Timor (Portugal v. Australia), General List No. 84, 1995 ICJ (June 30, 1995))' 21 Yale JIL 305 (1996).
291. In particular Judge Vereshchetin said, '[n]owadays the mere denomination of a State as administering Power may not be interpreted as automatically conferring upon that State general power to take action on behalf of the people concerned, irrespective of any concrete circumstances.' Timor case, n. 50 above, per Judge Vereshchetin (separate concurring opinion), at 138.
292. Timor case, n. 50 above, per Weeramantry J at 201; per Skubiszewski J at paras. 126-31.
293. The extent of the doctrine of nullity in international law is uncertain but in the Namibia opinion, the ICJ advised that perfunctory acts by the illegal South African administration, such as registration of births, deaths and marriages, and the benefit of humanitarian treaties, should be given effect for the sake of fairness to Namibians: Namibia Opinion, n. 46 above, at para. 121 (re humanitarian treaties) and para. 125 (re perfunctory acts of administration). In the Timor case, Judge Skubiszewski stated that 'there may be room for dealing with the State in effective control with regard to certain specific questions' and referred to the ICJ's decision in the Namibia case: Timor case, n. 50 above, per Skubiszewski J, at para. 151. For a similar approach based on the laws of war, see Machover, D., 'International Humanitarian Law and the Indonesian Occupation of East Timor,' in International Law and the Question of East Timor, n. 36 above, 205.
294. For the view that nationality decrees should not be recognised in cases involving illegal uses of force, see Langer, R., Seizure of Territory: the Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice, Princeton: Princeton University Press, 1947, reprint 1969, 107. In the case of Namibia (originally a mandated territory) passports issued by the South African government, an indication of South Africa's purported right to exercise diplomatic protection in relation to Namibians, were not to be recognised.
295. Traditionally, non-recognition of nationality decrees of an occupant would have served to protect the rights of the sovereign: Langer, ibid. Benvenisti argues that the law of occupation now serves to promote the interests of the people as a whole, not merely the elite represented by the ousted government, a point which has particular relevance in the context of East Timor. See Benvenisti, E., The International Law of Occupation, Princeton, NJ.: Princeton University Press, 1993, 183.
296. A belligerent occupant is prohibited from requiring the inhabitants of territory occupied during armed conflict to swear allegiance to it: art. 45 of the Hague Regulations Respecting the Laws and Customs of War on Land (1907). The Hague Regulations are accepted as a statement of customary international law and have been incorporated by reference in Article 64 of the 1949 Geneva Convention Relating to the Treatment of Civilian Persons in Time of War: 75 UNTS 287. For an application of this rule in the case of East Timor, see Machover, n. 254 above, at 213.
297. See Sections 1 and 2 above.
298. But see Grahl-Madsen's discussion of divided States and the two Chinas, where he argues that the relevant question is simply that of effectiveness: Grahl-Madsen, n. 185 above, at 258-9.
299. Portugal is not responsible for Indonesia's violations of human rights: art. 12, International Law Commission's Draft Articles on State Responsibility: YBILC, 1979, II (Part II), p. 90. (For the complete set of draft articles adopted in 1996, see 37 ILM 440 (1998).) The inclusion of the words 'territory and jurisdiction [emphasis added]' in art. 2 ICCPR66 has the same effect: Nowak, n. 123 above, 41-3.
300. Effective protection, rather than complicity, is the issue. Thus, Goodwin-Gill argues that decisions denying refugee status to Somalis on the basis that there is no effective government to which responsibility may be attributed are erroneous because the concept of imputability essential to State responsibility is not a relevant consideration: Goodwin-Gill, The Refugee in International Law, n. 183 above, at 70-6. In Ward's case, the Canadian Supreme Court held that state complicity was an irrelevant consideration and that in the case of a failed State, inability to protect could be assumed: Canada (Attorney-General) v Ward [1993] 2 SCR 689. See also, Hathaway, n 100 above, at 125-32; UNHCR Handbook, n. 114 above, at paras. 65, 98-100.
301. A military occupation through which the de jure authority has been displaced is a case par excellence of inability to protect, and the express inclusion of cases of military occupation in the OAU Convention may therefore be viewed as an 'extrapolation' of the 1951 Convention's intent: Hathaway, n. 100 above, at 18. An interpretation of CSR51 which permitted the return of East Timorese to Indonesia or East Timor on the basis of fictional protection by the de jure authority (Portugal) from persecution by the de facto authority (Indonesia) would defeat the object and purpose of the treaty. Furthermore, art. 33 CSR51 protects against refoulement to the frontiers of any territory posing a threat to life or liberty: Robinson, n. 144 above, at 161.
302. See Hathaway, n. 100 above, at 134; UNHCR Handbook, n. 114 above, at para. 91; Goodwin-Gill, The Refugee in International Law, n. 183 above, at 74, nn. 190 and 191. The key Australian authority is the decision of the Full Federal Court in Harjit Singh Randhawa v Minister for Local Government and Ethnic Affairs (1994) 124 ALR 265. The Court accepted that the 'internal protection principle' (that is, the internal flight alternative) is part of refugee law and that reasonableness is a relevant consideration.
303. As noted by Canadian authority, it is not possible to catalogue all relevant considerations in advance: M.E.I. v Sharbdeen (1994), 23 Imm.L.R. (2d) 300 (F.C.A.) at 301-2.
304. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (n. 43 above) established that a non-self-governing territory is one that is geographically separate and distinct ethnically and/or culturally from the State administering it: See principle IV of the 12 guiding factors regarding non-self-governing territories annexed to the Declaration.
305. These criteria are customarily considered in the Australian refugee status-determination procedure. In the key Australian authority on the internal flight alternative, Harjit Singh Randhawa v Minister for Local Government and Ethnic Affairs, Black CJ stated that the range of practical matters relevant to the issue of reasonableness is not limited to physical or financial barriers: Randhawa, n. 263 supra, at para. 15. For a list of the broad and flexible factors considered in Canadian authorities, see The Convention as Interpreted through the Case Law (1996), text accompanying n. 24, chapter 8: available on the internet at the Canadian Immigration and Refugee Board's site: http://www.irb.gc.ca/ main_e.htm
306. See Jolliffe, J., 'Indonesia Bars Would-Be Refugees from Leaving East Timor', Christian Science Monitor, 22 Sept. 1981, 16 [available on Lexis/Nexis, 'News, major papers' file]. According to Jolliffe, when the Red Cross first initiated the 'repatriation' scheme a list of 13,000 names was compiled, but Indonesian authorities refused to permit departure of the vast majority of the people on the list. Of the twenty thousand or so East Timorese who have left East Timor since 1975 about 1,300 have left under the auspices of the Red Cross: see Piper, n. 3 above.
307. Amnesty International, n. 33 above, at 27-8.
308. Amnesty International, n. 33 above, at p. 29, citing the conclusions of the Victorian Foundation for the Survivors of Torture and Trauma, Annual Report, 1995-6.
309. Dillman, J., 'International Refugee Law and Asylum Law,' 34 How LJ 51 (1991), at 54.
310. This explains ExCom's recommendation in Conclusion No. 15 that the intentions of an asylum seeker be taken into account: see n. 186 above.
311. This argument sometimes appears to be a ploy to treat developing countries as buffer zones shielding Western States from the refugee problem entirely, particularly where there are questions as to the protection that refugees will receive in those countries. See for example, the critique of Australia's 'safe third country' legislation in Taylor, S., 'Australia's "Safe Third Country" Provisions: their impact on Australia's fulfilment of its non-refoulement obligations,' 15 UTasLRev 196 (1996). For analysis of the situation in Europe, see Neuman, G., 'Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment,' 33 Va. J. Int'l L. 503 (1993), at 522-3.
312. This argument sometimes appears to be a ploy to treat developing countries as buffer zones shielding Western States from the refugee problem entirely, particularly where there are questions as to the protection that refugees will receive in those countries. See for example, the critique of Australia's 'safe third country' legislation in Taylor, S., 'Australia's "Safe Third Country" Provisions: their impact on Australia's fulfilment of its non-refoulement obligations,' 15 UTasLRev 196 (1996). For analysis of the situation in Europe, see Neuman, G., 'Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment,' 33 Va. J. Int'l L. 503 (1993), at 522-3.
313. See Neuman, ibid., at 505.
314. The UNHCR Handbook notes that most States abide by the recommendation in the Final Act of the Conference of Plenipotentiaries to maintain the unity of the family, particularly where the head of the family has been recognised as a refugee: n. 114 above, paras. 184 and 185. However, the Handbook does not go beyond recommending the application of the principle of family unity to dependants and it expressly states that the grant of refugee status to a dependent member of a family who has the protection of another country of nationality 'would not be called for': ibid, para. 184. In such cases, though, respect for family life under the broader human rights instruments could impact on the question of entry: see n. 114 above.
315. It is clear that the post-war wave of immigration to Australia, including the resettlement of refugees, has helped to shape a more vibrant and multicultural society. As Castles notes, few would argue that 'stagnation and isolation' should have been chosen over the dynamism resulting from immigration: Castles, S., 'Possible Social Impacts of Alternative Immigration Scenarios', consultant's report to the Committee to Advise on Australia's Immigration Policies, in 'Immigration: a Commitment to Australia', Canberra: Australian Government Printing Service, 1988, paper 1.5., at 2.
316. For example, Jong Kim Koe has several relatives in Australia, including a brother who arrived in Australia at the same time as Mr Jong and who was granted refugee status, presumably because the possibility of Portuguese protection was not then appreciate
317. See n. 114 above, and accompanying text.
318. Australia has a great capacity to accommodate refugees that is mis-matched with a comparatively small refugee intake. UNHCR estimated the total number of refugees, both 'onshore' and resettlement cases, and other persons of humanitarian concern granted protection by Australia between 1987 and 1996 at 89,969 people. The figure for the Netherlands, which has a smaller population, was 103,425 people. (Statistics available at RefWorld n. 3 above, in table 13 of the Statistical Overview for 1997.) In general, Western countries take few refugees (about 18% of the total refugee population), compared with developing countries; see Papademetriou, D.G., 'Migration', 109 Foreign Polity 15 (Winter) 1997-8, at 23.
319. See particularly ExCom Conclusion No. 18 (XXXI) of 1980, Report of the 31st Session: UN doc. A/AC.96/588, para. 48(3); ExCom Conclusion No. 40 (XXXVI) of 1985, Report of die 36th Session: UN doc. A/AC.96/673, para. 115 (5).
320. See the summary of claims before the RRT in n. 34 above.
321. The positioning of self-determination in art. 1 ICGPR66 and ICESCR66 emphasises the interdependence of group and individual rights, as does international law's move, in the context of decolonisation, beyond the traditional position that secession and the formation of a new State is a purely political phenomenon, and the correlative elevation of self-determination in the colonial context to a cardinal principle of international law.
322. De jure recognition of Indonesian control was part and parcel of the negotiation of the Timor Gap treaty. Thus, as Christine Chinkin has written of Australia's defence of its negotiation of the Timor Gap treaty, Australia's stance on East Timor 'has been fashioned by expediency and the desire to have a share in the maritime resources of the territory, rather than by principled application of norms of international law.' Chinkin, C., 'Australia and East Timor in International law,' International Law and the Question of East Timor, n. 36 supra, 269, at 289. Even if economic goals were to take priority, as though they could be pursued productively outside a framework of respect for international law, Australia's failure to move beyond an economy based primarily on what it 'grows and digs up' is subject to criticism. See, for example, Jones, B., 'We've lost the plot for the future', The Australian, 1 May 1998, 15.
323. De jure recognition of Indonesian control was part and parcel of the negotiation of the Timor Gap treaty. Thus, as Christine Chinkin has written of Australia's defence of its negotiation of the Timor Gap treaty, Australia's stance on East Timor 'has been fashioned by expediency and the desire to have a share in the maritime resources of the territory, rather than by principled application of norms of international law.' Chinkin, C., 'Australia and East Timor in International law,' International Law and the Question of East Timor, n. 36 supra, 269, at 289. Even if economic goals were to take priority, as though they could be pursued productively outside a framework of respect for international law, Australia's failure to move beyond an economy based primarily on what it 'grows and digs up' is subject to criticism. See, for example, Jones, B., 'We've lost the plot for the future', The Australian, 1 May 1998, 15.
324. Once Macau reverts to Chinese sovereignty, it is likely that Australia will be the main route of escape from East Timor.
325. Reported in 'Portugal Denies all Timorese are Citizens,' n. 129 above.
326. 'Timorese eligible for refuge', AAP Newsfeed, 11 Jun. 1999; available on Lexis/Nexis world newsfile.