East Timor, Transitional Administration and the Status of the Territorial Sea

By McLaughlin, Rob | Melbourne Journal of International Law, May 2003 | Go to article overview

East Timor, Transitional Administration and the Status of the Territorial Sea


McLaughlin, Rob, Melbourne Journal of International Law


I INTRODUCTION

There is nothing new in the United Nations, more particularly the UN Security Council ('UNSC'), undertaking tasks or establishing protocols for the conduct of 'domestic' functions in post-conflict areas. This form of temporary UN control and governance has been an element in several UN peace-support operations, (1) evidenced in acts of political governance ranging from attempts to reconvene the Congolese Parliament, (2) through to 'restoring law and order' in places like the Congo and East Timor, (3) to establishing and monitoring election systems in Namibia, the Western Sahara, Bosnia-Herzegovina, East Timor and Cambodia. (4) At other times UN control and governance has been manifested in a territorial sense--such as the establishment of no-fly zones in Iraq, (5) and the promulgation of UN safe areas during the Balkans conflict. (6) The current 'high water mark' (7) of UN transitional administration is to be found in the recently completed operations of the UN Transitional Administration in East Timor ('UNTAET') and in the ongoing operations of UN Interim Administration Mission in Kosovo ('UNMIK'). These are missions in which the UNSC, through appointed Special Representatives of the Secretary-General, has exercised or continues to exercise unprecedented power and authority over the people and territory under administration. One issue that has not been widely examined, however, is the practical effect of such mature transitional administration on the status of any waters attached to that territory; waters which would otherwise be characterised as a 'territorial sea'.

This short article aims to outline several potential approaches to characterising the legal status of the territorial sea of an entity under UN transitional administration. To do this, it will first briefly outline the context of transitional administration in East Timor by distinguishing it from that of the contemporaneous UN transitional administration in Kosovo. It will then employ the East Timor example as a lens through which to examine three possible options for characterising the territorial sea of UN-administered entities. The first two of these options are the sovereignty-based possibilities of residual colonial sovereignty and immediate vestment in the state-in-waiting (the entity under transitional administration). The third is an alternative possibility of temporary UN control of the territorial sea-designate. The article will then conclude with a few brief comments on the status of the territorial sea of entities under some degree of UN transitional administration, but in non-self-determination situations.

II BACKGROUND: THE EAST TIMOR CONTEXT

Several core aspects of the context of the UNTAET can be conveniently illustrated by comparison with that of the contemporaneous UN operation in Kosovo. Although similar in execution, the context of UNTAET, in which UNSC-mandated power and authority in the entity was exercised until its full independence on 20 May 2002, (8) differs from that of UNMIK in three significant ways.

Firstly, given Portugal's poor colonial development record until it abdicated the territory in 1975, there was little in the way of recent indigenous experience or institutions of self-governance in East Timor. Further, the subsequent 25 years of Indonesian occupation (1975-99) saw East Timor governed essentially as a military zone, again with heavily constrained local participation. (9) Kosovo, on the other hand, had had recent local experience and the memory of a significant degree of self-rule and autonomy within the Socialist Federal Republic of Yugoslavia, despite the fact that this autonomy was in abeyance in the decade 1989-99.

Secondly, while it was a relatively sudden escalation in violence that sparked involvement by the North Atlantic Treaty Organisation ('NATO'), and subsequently the UN, in Kosovo, (10) East Timor had been subject to 25 years of atrocities and resource stripping. …

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