- Looking into the future, it is likely that negotiations with Indonesia on a seabed boundary between the south of East Timor and Australia will lead to inferences that Australia is according de jure recognition of Indonesia's incorporation of East Timor. Any agreement on such a boundary is likely to strengthen such inferences. Senator Knight's letter to you makes it clear that his constituent, Mr G. Miller, has already assumed that this would be the case. The legal position here is complicated.
- In the absence of an express statement to the contrary, there is a strong presumption that a government accepts the validity of another government's title (i.e. de jure recognition) to territory from which an international boundary is measured for the purpose of negotiating an agreement on an international seabed boundary. The presumption of recognition is cogent when concluding a bilateral treaty, especially if the treaty relates to territorial claims or affects the rights and obligations of individuals. However, recognition is primarily and essentially a matter of intention. In international law, there is, as a rule, no conduct however conclusive in ordinary circumstances the normal legal consequences of which cannot be averted or interpreted by a clear manifestation of a contrary intention.
- Applying these principles to the East Timor situation it is clear that negotiations with Indonesia on a seabed boundary south of East Timor would give rise to a strong legal presumption that Australia had moved to a de jure recognition of Indonesia's incorporation of East Timor. It is doubtful whether a statement (i.e. statement of 20 January) made several months before the negotiations with Indonesia would be sufficient to rebut that presumption.
If the Government did not wish these negotiations to give rise to a situation of de jure recognition, it might be necessary to affirm at the relevant time that the negotiations do not affect Australia's policy on recognition. The difficulty with this option, however, is that such a statement would appear to others, including the Indonesian Government, to be in contradiction with our behaviour. We feel, however, that this is the only avenue available in international law to rebut the presumption referred to above.
- In all the circumstances the Government may prefer to 'slip' into de jure recognition of Indonesia's incorporation of East Timor. This would not require any new announcement. If questions are asked about these changes the Government could explain its position by arguing that it was necessary to acknowledge Indonesia's claim to East Timor for the purpose of negotiating an international agreement which is very much in Australia's interest, but that the Government remains critical of the means by which integration was brought about. 1
First Assistant Secretary
Legal and Treaties Division
[A9737, 92/012409, vii]