accordance with relevant U.N. decisions; (2) assistance by all U.N. members to the South West Africa People's Organization (SWAPO), as the "sole and authentic" representative of the Namibian people, in its struggle "against the forces of colonialism and racism"; (3) enforcement of Decree No. 1 of the U.N. Council for Namibia, which prohibits exploitation and export of Namibian natural resources; (4) the imposition of a mandatory arms embargo against South Africa ; and (5) all states to "endeavor to dissuade South Africa from pursuing the separation of Walvis Bay from Namibia." For further information concerning U.S. initiatives in Southern Rhodesia, see post, Ch. 13, § 1, pp. 892-896. For further information concerning a mandatory arms embargo against South Africa, see post, Ch. 14, § 6, pp. 934-936. East Timor On July 19, 1977, George H. Aldrich, Deputy Legal Adviser of the Department of State, testified before the Subcommittee on International Organizations of the Committee on International Relations of the House of Representatives on the legal aspects of Indonesia's military intervention in East Timor in December 1975, and the subsequent incorporation of East Timor into Indonesia in July 1976. Portions of his testimony concerning the permissible uses of force under the United Nations Charter and the right of the people of East Timor to self-determination follow: * In an ideal situation, the process of decolonization of East Timor would have proceeded in an orderly fashion with Portugal preparing for an early transfer of power pursuant to a plebiscite or other act of self-determination by the people of East Timor conducted in an atmosphere of free political activity. Unfortunately, the situation did not develop that way, and Portugal, preoccupied wtih political upheaval at home and in its African colonies, abandoned in fact its administration of the territory in August 1975 and left the struggle to the warring local factions. From that period until at least November 1975, Indonesia recognized Portugal as retaining legal authority and responsibility for the future of East Timor. It also held discussions with some of the Timorese parties. In late November 1975, Fretelin, a faction which had gained control of the former Portuguese arsenal and, consequently, military primacy over much of the territory of East Timor, declared itself the government of an independent "Democratic Republic of East Timor." This declaration was not accepted by members of the other factions in East Timor and vigorous fighting continued. Indonesia then intervened militarily. *** During the period from December 1975, until June 1976, it was the policy of the United States to favor a resolution of the problem of East Timor by the Timorese and other concerned parties themselves. We supported Security Council Resolution 384 as well as United Na tions General Assembly Resolution 3485 of December 12, 1975, also calling for respect for the right of self-determination of the people of East Timor. We remained hopeful that the report of the Special Representative of the Secretary-General would offer a promising course, but due to a number of factors it was inconclusive and again called on the parties to work out a solution. We abstained on Security Council Resolution 389 of April 22, 1976, largely because the Security Council did not accept an amendment which would have acknowledged steps taken by Indonesia to begin withdrawal of its forces from East Timor, but at the same time the United States Representative reaffirmed "our support of the right of the people of East Timor . . . for . . . self-determination." On July 17, 1976, Indonesia formally incorporated East Timor as its 27th province. This followed unanimous approval by the People's Council of East Timor on May 31, 1976, of a petition asking Indonesia to accept integration of East Timor into Indonesia. According to information we have received from Indonesian authorities, the People's Council consisted of 28 members, the majority of whom were said to have been tribal chiefs and other traditional leaders selected through meetings of local leaders, with the representatives from Dili, the capital city, said to have been chosen by direct elections. We actually know very little about the selection process for these delegates, although the process itself took place at a time of military occupation by Indonesia during which considerable fighting was still going on. The United States Government did not question the incorporation of East Timor into Indonesia at the time. This did not represent a legal judgment or endorsement of what took place. It was, simply, the judgment of those responsible for our policy in the area that the integration was an accomplished fact, that the realities of the situation would not be changed by our opposition to what had occurred, and that such a policy would not serve our best interests in light of the importance of our relations with Indonesia. It was for these reasons that the United States voted against United Nations Gencral Assembly Resolution 31/53 of December 1, 1976, which rejected the incorporation of East Timor into Indonesia and recommended that the Security Council take immediate steps to implement its carlier resolutions to secure exercise by the people of East Timor of their right of self-determination. I think it is important to state that I do not view United States policy in the case of East Timor as setting a legal precedent for future cases. The fact is that decisions whether or not to treat an entity as part of another entity are most often taken as political decisions on the basis of all the circumstances of the particular case in what is perceived as the national interest. An important factor to be considered, obviously, is our commitment under Articles 55 and 56 of the United Nations Charter to promote respect for human rights, including the right of self-determination. However, the question remains what we are required to do if this right is not observed as we might wish in a situation in which we believe that efforts by us to change the situation would be futile and injurious to other national interests of the United States. We do not believe that we are required in such circumstances to refrain from acting on the basis of the prevailing factual situation. In the case of East Timor, the policy judgment has been made by this Administration, as stated by Deputy Assistant Secretary [Robert B.] Oakley last March, that our interests would not be served by seeking to reopen the question of Indonesian annexation of East Timor. Instead, we have directed our efforts to urging Indonesia to institute a humane administration in East Timor and to accept an impartial inspection of its administration by the International Committee of the Red Cross. It is believed that these measures represent the most effective way we can promote the human rights of the inhabitants of East Timor in the present circumstances. Human Rights in East Timor, Hearings before the Subcommittee on International Organizations of the Committee on International Relations of the House of Representatives, 95th Cong., 1st Sess. (June 28-29, 1977), 46-48. For the remainder of Mr. Aldrich's testimony, see post, Ch. 14, § 9, pp. 991–992. $ 2 Continuity and Succession of States State Succession to Debts In his November 11, 1977, statement on the Report of the International Law Commission on the Work of Its Twenty-Ninth Session, Robert Rosenstock, U.S. Representative to the Sixth Committee (Legal) at the United Nations, urged that the state debt to be covered by the proposed draft convention of the Commission on succession of states in respect of matters other than treaties embrace the normal range of state debt, including the debt of individuals and corporations, and not be confined to that fraction of state debt which runs between states or between states and international organizations. Mr. Rosenstock made these comments while discussing the following text of article 18, entitled "State debt," of the proposed draft convention: For the purposes of the articles in the present part, "state debt" means any [international] financial obligation which, at the date of the succession of states, is chargeable to the state. Report of the International Law Commission on the Work of Its TwentyNinth Sess. (the "Report"), May 9-July 29, 1977, GAOR: Thirty-second sess., Supp. No. 10 (A/32/10), 1977, p. 137. Portions of Mr. Rosenstock's comments follow: * [By] including the word "international" in brackets in article 18, the Commission has posed a question whose answer, we believe, is quite clear. The question is: shall the state debt to be covered by the proposed draft convention on state succession embrace the normal range of state debt-whether that debt be to foreign states, international organizations, to individuals or to corporations or shall that debt be confined to that fraction of state debt which runs between states or between states and international organizations? There is no interference in the internal affairs of states if state debt is defined to include state debt to individuals, including nationals of the predecessor state. State succession by definition is hardly an internal affair; it necessarily concerns more than the predecessor state. Moreover, international law, in point of fact, simply is not confined to the rights of states; it also concerns the rights of individuals. That elemental truth is demonstrated by the texts of hundreds of treaties, by the content of thousands of cases, and by the proceedings of this Organization on numerous issues including apartheid. State practice contains cases of succession of states to thousands of debts whose creditors were alien individuals or corporations. This large body of state practice cannot be ignored in any effort at codification in order to meet the ideological outlook of a minority of the world community which is antipathetic to some forms of economic activity, and which wishes to depreciate the rights of individuals under international law. Even those forming that minority have entered into a series of lump-sum claims agreements since the Second World War which provide that they will negotiate settlement of outstanding defaulted bonds, which are privately owned, with the bondholders. Accordingly, having regard to universal state practice, we see no basis for excluding state debt to private parties from the scope of this draft convention. If the Commission were to confine state debt in this draft to "international" debt, it would be saying to governments, especially perhaps those of developing countries: your ability to borrow internationally from private creditors has been put into question. It would be saying to private creditors: hesitate to loan to foreign governments, because, in case of state succession, the foundations of your loan will be thrown into question. Article 11 of the draft provides that debts owed to the predecessor state-whoever the debtor is-shall pass to the successor state. Similarly, debts owed by the predecessor state should be dealt with, whoever the creditor is. Article 20 of the draft raises essentially the same issue. This time, the purpose of the brackets apparently is to exclude from coverage the rights of creditors other than states or international organizations. For the reasons we have just indicated, there is no good basis, in fact or in law, for depreciating the status of creditors other than states or international organizations, or for treating them in a fashion less favorable than states and international organizations. The brackets should be removed. To turn to article 22, if the draft is to contain an article in this part on newly independent states-and this clearly is the general view with which the United States is prepared to go along-then my government strongly prefers the text which is found in footnote 403 of the Commission's report, for the reasons set out in paragraph 68 of the commentary on this article. . . . It notes that this alternative text received support from some members of the Commission and hopes that governments will give it their fullest consideration. Press Release USUN-112 (77), Nov. 11, 1977, pp. 11-14A. The texts of arts. 11, 20 and 21 of the proposed convention, as adopted so far by the Commission, are reproduced below from pp. 132, 135, and 136 of the Report: [Article 11 Passing of debts owed to the State Subject to the provisions of the articles of the present Part and unless otherwise agreed or decided, debts owed (créances dues) to the predecessor State by virtue of its sovereignty over, or its activity in, the territory to which the succession of States relates shall pass to the successor State.] Article 20 Effects of the passing of State debts with regard to creditors 1. The succession of States does not as such affect the rights and obligations of creditors. 2. An agreement between predecessor and successor States or, as the case may be between successor States concerning the passing of State debts of the predecessor State cannot be invoked by the predecessor or the successor State or States, as the case may be, against a third State or international organization which is a creditor [or against a third State which represents a creditor] unless : (a) the agreement has been accepted by that third State or international organization; or (b) the consequences of that agreement are in accordance with the other applicable rules of the articles in the present Part. Article 22 Newly independent States When the successor State is a newly independent State: 1. No State debt of the predecessor State shall pass to the newly independent State, unless an agreement between the newly independent State and the predecessor State provides otherwise in view of the link between the State debt of the predecessor State connected with its activity in the territory to which the succession of States relates and the property, rights and interests which pass to the newly independent State. 2. The provisions of the agreement referred to in the preceding paragraph should not infringe the principle of the permanent sovereignty of every people over its wealth and natural resources, nor should their implementation endanger the fundamental economic equilibria of the newly independent State. The text of art. 22 set forth in footnote 403 of the Commission's commentary is reproduced below from p. 224 of the Report: Article 22 Newly independent States 1. No debt contracted by the predecessor State on behalf or for the account of a territory which had become a newly independent State shall pass to the newly independent State unless the debt related to property, rights and interests of which the newly independent State is beneficiary and unless that passage of debt is in equitable proportion to the benefits that the newly inde |