Patrícia Jerónimo The issue of whether the inhabitants of East Timor were Indonesian and/or Portuguese citizens became highly topical in the early 1990s, when, following the ‘Santa Cruz massacre’ of November 1991, a large number of East Timorese arrived in Australia seeking asylum. The Australian authorities, which, since 1979, had always treated the East Timorese as Indonesian citizens, begun, in 1992, to hold the view that the persons born in East Timor (before and after 1976) had also retained their Portuguese citizenship and were therefore not entitled to claim protection in Australia as refugees, since Portugal was the state primarily responsible for their protection under the 1951 Geneva Convention (Nygh 2002: 507-508, 510). Possibly in an attempt to help the East Timorese in their asylum applications before the Australian authorities and/or to avoid mass deportations to Portugal, the Portuguese Government reacted, through its Ambassador in Australia, stating (wrongly) that the attribution of Portuguese citizenship to persons born in East Timor was not automatic, but required an application by the interested party, to be examined on a case-by-case basis (Nygh 2002: 522).45 This eventually persuaded the Australian courts that, while it was legally accurate that the appellants had retained their Portuguese citizenship, such status was ineffective and therefore ‘reference to Portugal as a country offering prior protection to East Timorese refugees could not be sustained’ (Nygh 2002: 508, 520-521, 528-531). By the end of the 1990s, following Soeharto’s resignation as President of Indonesia and with growing international attention to the East Timorese plight for independence, conditions were finally gathered for significant developments in the talks held by the UN Secretary-General with Indonesia and Portugal about the status of East Timor.46 In January 1999, President Habibie of Indonesia announced that the East Timorese would be allowed to choose between a status of greater autonomy within Indonesia and a transition to independence (UNHCR EPAU 2004: 11). On 5 May 1999, Portugal and Indonesia signed an Agreement on the Question of East Timor,47 in which the two countries requested the UN Secretary-General to put the constitutional framework for autonomy proposed by Indonesia to the East Timorese people, both inside and outside East Timor, for their consideration and acceptance or rejection through a popular consultation on the basis of a direct, secret and 45 As the press statement issued by the Embassy of Portugal to Australia in 1998 went, “Portugal has consistently stated that the attribution of Portuguese citizenship to East Timorese born persons presupposes an individual and voluntary application that reveals the wish to become a Portuguese national. It means that East Timorese are not automatically Portuguese nationals. Portuguese nationality laws were not designed to force the assimilation of East Timorese people into the Portuguese State, but to positively provide them with the right of exercising a free choice on what concerns their nationality until self determination is settled in the Territory” (apud Nygh 2002: 519). This reading is blatantly wrong for people born in East Timor before 25 April 1976, who (irrespective of the citizenship of the parents) were Portuguese by operation of the law, and for those born after the entry into force of Law no. 37/81, of 3 October 1981, who (if born to a Portuguese parent) were Portuguese by operation of the law. For the attribution of Portuguese citizenship to people born in East Timor in the intermediate period, when births in East Timor were considered to be births abroad, Law no. 2098, of 29 July 1959, only required that one of the parents be Portuguese and that the interested party fulfilled one of three alternative requirements: declared his or her wish to be Portuguese; had his or her birth registered in the Portuguese Civil Registry; or established voluntary domicile in Portuguese territory and declared it before the competent authorities (Article 4). If the legal requirements were fulfilled, the Portuguese authorities had no margin of appreciation to decline the attribution of Portuguese citizenship. 46 The talks were held on a regular basis, at the request of the UN General Assembly, from 1982 onwards. Information available at http://www.un.org/en/peacekeeping/missions/past/unmiset/background.html [05.01.2017]. 47 Agreement Between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, of 5 May 1999, also known as New York Agreement, available at http://peacemaker.un.org/ sites/peacemaker.un.org/files/ID%20TL_990505_AgreementOnEastTimor.pdf [05.01.2017]. 12 RSCAS/GLOBALCIT-CR 2017/7 - © 2017 Author