Timor and Australia Agree to Extend Timeframe

We certainly live in interesting times. Something seems to be afoot.

There have been Compulsory Commission meetings, this time in Singapore during the last week of July.

But the fact that this press release was only issued now, nearly 2 weeks after their conclusion indicates that they agonized over it.

So what is new?

Two things.

Firstly, there is hope. The Chairman of the Commission is optimistic that an agreement will be reached, even if it is like getting 'blood out of a stone’ [not stated but inferred by me!].

 
 

Secondly, they are extending the time frame.

 
 

This can be done by mutual agreement. They are not giving a new deadline, only saying that: “The Commission expects to conclude its substantive discussions with the Parties by October of this year, after which it will proceed to issue its report.”

Up until now the deadline for completing the report was the 19th of September 2017. This was made clear when the Competence Decision signed on the 19th of September 2016 said:

“The 12-month period in Article 7 of Annex V of the Convention shall run from the date of this Decision.”

Article 7 says:

“The commission shall report within 12 months of its constitution. Its report shall record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement.

The report shall be deposited with the Secretary-General of the United Nations and shall immediately be transmitted by him to the parties to the dispute.”

So what do we make of this?

Well, I take some heart in this Press Release.

If the process was completely ‘stuck’ then there would be no need to extend – it would just be a case of the Commissioners accepting that they were unable to broker an amicable resolution and writing up their recommendations for the report.

So no one is throwing their hands up in the air just yet.

However, I get the impression that it is extremely tough to get to that final point where there is full agreement on both sides.

I have had a lawyer explain to me that in big negotiations like this there is a premise that ‘Nothing is agreed until everything is agreed’.

This means there may be many points of agreement with a just a few really tough ones remaining unresolved. These have to be overcome so that ‘everything is agreed.’

How do we respond as supporters of East Timor?

Keep up the pressure! Remind your pollies that we are watching closely and we are looking for an agreement.

Point out that it is in Australia’s best interests to have this process succeed.

We are rightly getting flack in the international arena about the chasm between our talk and our practice.

Here is now an opportunity for a good story, to demonstrate that we Australians can resolve differences under international law.

Come on ... give a little help here! Here's something you could send. Please print it, add your details, and post it to your MP and state Senators. (Don't forget to add their name at the top where it has "Dear......" in large print.)

What an embarrassment it would be to come to the end of this process, the first time ever the mechanism has been used in the history of UNCLOS, only to find that Australia’s intransigence and belligerence has caused its failure.

Then it would be the height of hypocrisy to keep tooting the UNCLOS horn and declaring Australia’s belief in its power to resolve maritime disputes.

For now there is a glimmer of hope.

Let's do what we can to fan it into a flame.

Set an example in the Timor Sea

 
 

Government of Australia, you have a big opportunity in front of you.

Please embrace it!

Use the United Nations Conciliation process with East Timor, which must now be in its final stages, to demonstrate to the region that you really do care about the ‘rules based order’ and believe in the ability of the United Nations Convention on the Law of the Sea [UNCLOS] to settle maritime disputes.

Failure to broker a mutually acceptable agreement in this process will undermine the credibility of our foreign policy position on maritime claims for years to come.

It would throw a spotlight on the hypocrisy of a country that says “do as I say, not as I do.”

Over the past two weeks Minister of Foreign Affairs, the Hon. Julie Bishop MP, has continued to strongly put the Australian Governments position that maritime disputes must be solved in accordance with international law and specifically as reflected in the 1982 United Nations Convention on the Law of the Sea [UNCLOS].

In Thailand last week Minister Bishop said:

“The pursuit of national interest is testing the norms and rules which have served our region for so long, and which are the basis of our security and prosperity.”

Well I am sure the Timorese, who continue to be blocked by Australia from access to international maritime arbitration, would agree.

Bishop, of course, is thinking more about North Korea and China’s position in the South China Sea.

She went on:

“There is a compelling need to defend the rules-based order in the region. We need resilient and clear processes to manage conflict and the maintenance of the norms that apply equally to all states, large and small.”

Yes Minister, large and small.

Then yesterday in Manila the Australia-Japan-United States Trilateral Strategic Dialogue issued their joint statement.

 
Trilateral Joint.jpeg
 

This is even more specific about what the ‘rules based order is’.

“The Ministers called on all claimants to make and clarify their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to resolve disputes peacefully in accordance with international law.

The Ministers called on China and the Philippines to abide by the Arbitral Tribunal's 2016 Award in the Philippines-China arbitration, as it is final and legally binding on both parties.

The Ministers noted the significance of the UNCLOS dispute settlement regime and the Tribunal’s decision in discussions among parties in their efforts to peacefully resolve their maritime disputes in the SCS.”

Well, the Australian Government appears to love UNCLOS.

My goodness we are even spending millions of dollars to assist countries in the South Pacific make and settle their maritime claims under UNCLOS.

OK – so let’s cut to the chase.

Australia and Timor-Leste have a maritime dispute.

Timor-Leste’s options to resolve it under UNCLOS are limited because Australia actually refuses to be subject to jurisdiction on maritime boundaries.

Timor took about the only option left to it under UNCLOS – a Compulsory Conciliation process – initiated in April 2016.

Australia fought foot tooth and nail to get out of it, funded by the Australian taxpayer - but was told in September 2016 by the Commissioners that the process would go ahead.

We are now getting towards the end of this process which is supposed to take 12 months.

East Timor is doing exactly what Australia, the US and Japan are calling for in the region.

They are seeking to “clarify their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to resolve disputes peacefully in accordance with international law.”

That is absolutely their intent, made clear in the Opening Statements in the Hague in August 2016.

The Compulsory Conciliation Process that Timor-Leste and Australia are now in is undeniably part of the “UNCLOS dispute settlement regime” hailed by Australia, Japan and the US in the statement.

In fact it was included in Annex V of UNCLOS in order to resolve a maritime dispute between two countries in our current position - specifically where one country [Timor–Leste] is denied access to arbitration by another country [Australia] and that same country [Australia] persistently refuses to negotiate the dispute.

It is there to get us ‘unstuck’.

Now this is the first time this part of the UNCLOS dispute settlement regime has been used.

Ever.

So  - will our position in the negotiations now coming to a close lead to an amicable resolution of the dispute and celebration of the “UNCLOS dispute settlement regime”?

Or  - will our intransigence sabotage our own public policy position by ensuring the UNCLOS dispute settlement regime is seen as a failure in our own backyard.

I see a rare opportunity for a win here. Maybe it means giving a little more than hoped on the part of Australia, but in the big picture it’s an opportunity for a big win.

Time to set an example in the Timor Sea.

As this process moves towards its conclusion I want to be part of the celebrations when an amicable resolution is presented in the Commissioners report to the United Nations Secretary General.

Where the next step in our chequered history is, finally,  a mutual agreement on the  maritime boundary between our countries.

This agreement would not only be a win for Timor and Australia, it would be a huge win for the ‘international rules based order’ and a great endorsement of UNCLOS as a mechanism to resolve maritime disputes.

There is a lot to gain.

Let’s do it.

 

Conciliation Crunch Time?

Most would know that East Timor's parliamentary election was conducted last weekend [22nd of July] and that it went very well. The reports from all the independent international election monitors are very positive and say that it was calm and well organised.

You may also know that it was a very tight outcome. The Fretilin party and the CNRT party of Xanana Gusmão received the lion's share of the vote and are expected to have 23 and 22 seats respectively in the 65 seat parliament with the other seats shared between three other parties. In the end, after about 540,000 voters made their choice, there was only a little over 1,000 votes separating the two parties!

Provisional Results as at 24/7/17

Provisional Results as at 24/7/17

That is why what happened next was unusual.

Social media was abuzz with news that Xanana Gusmão had left the country after the election.

Not exactly what you would expect from a 'founding father' who has been careful to promote a sense of calm around the electoral process. The suggestion was that he had gone to a meeting on the maritime boundary issue. 

Could this mean it is 'crunch time' in the UN conciliation?

It is certainly no secret that we are moving to the pointy end of the process.

We know that the Commissioners must be 'under the pump' to get a good result and then document it all in the report they are to have finished by the 19th of September. Ready for delivery to the Secretary General of the UN.

After all they are literally making history - the first time ever this process has been used under UNCLOS. Will it be a success? A triumph of the international rules based order we hear about from Bishop, Turnbull etc?

That deadline my friends is only a little over 8 weeks away - for the delivery of a report that according to the relevant articles in UNCLOS Annex V will:

"...record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement. The report shall be deposited with the Secretary-General of the United Nations and shall immediately be transmitted by him to the parties to the dispute."

Perhaps in the next days we will see one of those Press Releases pop up from the Permanent Court of Arbitration. They look after the administrative work of the Commissioners. The next one will be Press Release No 8. If there is one what is the tone of that going to be?

I emailed bureau@pca-cpa.org at the beginning of this process to ask them to add me to an email list for anything coming up on the Timor-Leste Australia Conciliation. Now those releases come to my in box hot off the press! Easy. Why not do it too?

Surely Australia is now agreeing to a maritime boundary based on the median line with appropriate adjustments that would be expected to be made under international law?

If not we will call out their hypocrisy.  

Despite Bishop's persistent reminder that the outcome is not binding the story does not end with the report - the obligation is still there to resolve - but that is for another blog post!

I hope we see a conclusion once and for all - enough! An agreement in the report that amicably resolves the dispute, reduces the chasm between our words and our actions, and is something that we Aussies can be proud of. 

May this process in UNCLOS work!

Keep watching, keep up the pressure. 

Eyes on Oz - Global Attention on the Conciliation Outcome

Following on from Professor Michael Leach's excellent article, Timor-Leste elections suggest reframed cross-party government I have tracked down the Report of the Committee on Armed Services US House of Representatives - and yes - there on page 210 of the report, is this observation by the Committee:

 
 

Now this "Item of Special Interest" may not make it into the final bill as passed by the US Congress and Senate - but the fact that it is there in this report of the committee sends an important message - this conciliation process is being watched closely.

Government of Australia - take note.

The US is tracking it and, considering this report, wants to see a fair resolution that respects international law achieved by 19 September.

The United Nations and all the International Law boffins are certainly watching closely. 

This is the first time a compulsory conciliation has been conducted under UNCLOS. This section of the convention [Annex V] was inserted precisely to help break through the kind of impasse we see with Australia and East Timor.

It is there in the convention to help countries, like Timor, that have been shut out of the option of arbitration and then are faced with a country that refuses to engage in boundary negotiations.

Will Australia's talk on respecting the 'international rules based order' prove to be only talk?

Will this landmark moment be a celebration of good dispute resolution, and the success of UNCLOS, or proof that a large developed country's stubbornness and self interest will prevail over its small undeveloped neighbour, regardless of its 'preaching'?

António Guterres, Secretary-General-designate of the United Nations, taking the oath of office and delivering remarks to the General Assembly. UN Photo/ Eskinder Debebe

António Guterres, Secretary-General-designate of the United Nations, taking the oath of office and delivering remarks to the General Assembly. UN Photo/ Eskinder Debebe

The UN Secretary General, who is to receive the report of the Conciliation Commission once we hit the 19th of September deadline, will definitely be paying attention - SG António Guterres is a former Portuguese Prime Minister with a long and close relationship with Timor.

The Timorese people just want to see their maritime boundary established fairly and in accordance with international law - to sort this issue out once for all so that the energy and money spent on this issue can be channelled back towards national development.

And we, the advocates for justice in the Timor Sea from around the world, will be watching too - wanting to see Australia show respect for its neighbour and resolve this amicably by 19th of September. 

We all will be looking for substance, not spin.

Bishop now proud of Australia's participation in Compulsory Conciliation?

Sometimes politicians still surprise me, even after all these years.

Yesterday in India, Australia's Foreign Minister the Hon Julie Bishop MP seemed to use Australia's participation in the UN Compulsory Conciliation as a 'badge of honour', an example of Australia's commitment to UNCLOS and international law.

She of course avoided use of the word 'Compulsory'.

 
 

Here are a few other things she neglected to say:

Under her leadership Australia has spent hundreds of thousands of taxpayer dollars to avoid this UN process initiated by Timor-Leste in April 2016.

At the time of the Opening Hearings in August 2016 Minister Bishop said:

"We will argue that the commission does not have jurisdiction to conduct hearings on maritime boundaries. If the Commission ultimately find that it does have jurisdiction to heart matters on maritime boundaries, then its final report on that matter is not binding."

When the Commission ruled that they did have jurisdiction Bishop again said:

"In accordance with the provisions of UNCLOS, the Commission will produce a report which, unlike an arbitration decision, is not legally binding."

So (1) we shouldn't be in it and (2) we can ignore its outcome. 

Australia's participation was pretty much unavoidable. The process in compulsory. But it was certainly not welcome and its outcome has already been 'downplayed' by the Minister.

And then there is this fact:

The option of an arbitration was denied to East Timor because Australia [unlike India] does not submit to any arbitration to do with maritime boundaries under UNCLOS. Australia made a deliberate withdrawal from jurisdiction in March 2002 to thwart Timorese aspirations for a just maritime boundary based on the median line.

The India - Bangladesh resolution, which she praises, has some striking contrasts with Australia's position towards East Timor.

  • The resolution was only possible because the larger country [India] was willing to be subject to the arbitration initiated by the smaller country [Bangladesh]
  • The outcome was accepted graciously by India who noted the larger country should not bully the smaller
  • India pursued straight ‘equidistant’ case, Bangladesh argued ‘equity’ - arguing that the economic results of a simple midline would unequally impact their country
  • Bangladesh’s ‘win’ in 2014 opened up opportunities for oil exploration that will be a big help to the struggling Bangladesh economy - something welcomed by India

If Australia wanted to follow the example of India they could submit to arbitration. Or they could recognise the 'economic inequity' and err on the side of generosity as regards Greater Sunrise.

We are coming to the pointy end of the Compulsory Conciliation process. The report is to be delivered to the Secretary General of the United Nations by the 19th of September 2017. 

Is Australia's approach matching its rhetoric? Is it going to be like India - or will it continue to be adversarial and mean spirited?

It is a confidential process, but the tone of the press releases from the PCA are give the message that moving towards a resolution is a struggle.

One thing for sure, Bishop cannot have it both ways.

If there is no mutual agreement between Australia and Timor-Leste come the 19th of September East Timor's supporters will want to know why. The Secretary General of the UN will surely want to know why too. The UN process was designed to resolve this kind of dispute.

All of this speech about respecting international law could very quickly be shown on a global scale to be hollow.

Keep the pressure up - there is still a little time to complete and send paper versions of our petition to the House of Representatives. [till 30th July 2017]

 

 

Three Cheers for Some Senators!

As a result of the meeting in Canberra on 13 and 14 June 2017, we were able to persuade some senators to bring the issue to attention in the Senate.

                             Senator Scott Ludlam speaking at the rally outside Parliament House on 14 June 2017

                             Senator Scott Ludlam speaking at the rally outside Parliament House on 14 June 2017

On 20 June, Senator Ludlam (Greens), Senator Xenophon (NXT), and Senator Claire Moore (ALP) gave notice of a motion, as below.

AND Senator Ludlam made a speech in the Senate...

 
 

Notice of Motion:

The Senate - 

1.      Notes:

a.     There is currently no agreed upon border in the Timor Sea between Australia and Timor-Leste; 

b.     A fair and permanent border is in both our nations’ national interest;

c.     On 21 February 2017, the Minister for Foreign Affairs (Ms Bishop) urged the

d.     claimants in the South China Sea to negotiate in accordance with international law or resort to arbitration through the United Nations Convention on the Law of the Sea (UNCLOS);

e.     After 14 years of Australia refusing negotiations, Timor-Leste has initiated proceedings in the United Nations for compulsory conciliation under the United Nations Convention on the Law of the Sea, seeking “the area of the Timor Sea subject to its exclusive sovereign rights under international law";

f.      There is nothing to stop Australia and Timor-Leste reaching agreement before the report of the commissioners under the conciliation process, due in September 2017;

g.     Many Australians have called for a permanent maritime boundary in the Timor Sea settled in accordance with current international law;   

h.     Australia's Prime Minister, in Singapore on 1 June 2017, stated Australia's vision for the region where the "rights of small states are untrammelled; where our shared natural bounty, our land, water and air is cherished and protected, and disagreements are resolved by dialogue in accordance with agreed rules and established institutions”. 

2.      Urges the Australian Government to finalise in good faith and as soon as possible, a fair and permanent maritime boundary between Australia and Timor-Leste.

The motion is on the Senate motion list but because the Senate is dealing with business the government wants finalised, it will not be debated until the Senate resumes after the winter recess in August.

The motion was watered down from the draft we offered, to secure the support of the ALP, which declined to refer to the median line principle.

When Senator Ludlam moved the motion the Government denied leave to allow debate on it, but he was able to make a short speech about it.  You can see the video on the Senator's Facebook page: 

https://www.facebook.com/SenatorLudlam/videos/10155550831859470/

Drawing the Line in Canberra

Members of the national alliance of the Timor Sea Justice groups met in Canberra on 13th and 14th of June.

Some of those in Canberra drawing the line with Politicians

Some of those in Canberra drawing the line with Politicians

The hospitality of the Canberra Friends of Dili and of the Canberra Timor Sea Justice Action Group was gratefully received. Time was taken to tell stories of involvement in this struggle, and to share ideas. Dinner and speeches on the Tuesday night prepared us for the events of the next day.

Early morning appointments with Senators and MPs led towards the demonstration outside the Parliament at midday. Large banners declared the issue. Speeches by Senators Claire Moore, Scott Ludlam and Nick Xenophon were straight and to the point - Draw the Line.

Shirley Shackleton spoke, a stalwart supporter of the Timorese, one who keeps the Balibo Five disgrace alive before the Australian people.

Bernard Collaery gave two speeches, one at the rally and one the night before at the dinner. He is the lawyer for "Witness K", the person who made known Australia's alleged spying on the Timorese negotiating team concerning the 2004-2006 Greater Sunrise discussions. The narrative of Australia's treatment of the Timorese people over these Timor Sea matters was riveting and disturbing.

"We live in a rough country," said Bernard.

A great deal of work remains to be done in this rough country, and with this rough issue.

Don't forget that you can sign the petition either online or on paper.

Are you kidding me? Australia's statements on Maritime Boundaries at the UN.

Last week at the United Nations, Australia's Minister for International Development and the Pacific,  Senator the Hon Concetta Fierrvanti-Wells, chaired a Partnership Dialogue. There at the Headquarters in New York, they were discussing "implementing international law as reflected in the United Nations Convention on the Law of the Sea". All in the context of Goal 14 of the  Sustainable Development Goals which has to do with Oceans and their resources.

The Senator, who is the number two in our Foreign Affairs portfolio under Minister Julie Bishop, demonstrated yet again the breath taking ability of our Government to talk as though the issue in the Timor Sea does not exist.

In her opening remarks She noted that Australia's "marine jurisdiction is the third largest in the world, encompassing around 14 million square kilometres" and firmly stated that "International law is a reflection of our collective ambition to find solutions to problems that can only be resolved through global action and cooperation."

 
 

Then came something I was unaware of.

"In our region', she said "Australia is working with the Pacific Community to support our Pacific neighbours, to implement UNCLOS by providing technical and legal support for maritime boundary delimitation. I was pleased to announce earlier this week that Australia will commit a further $2 million over three years to provide ongoing support for this important Pacific maritime boundary work."

The media release announcing the contribution actually said this:

 
 

Let that sink in. Especially the last sentence.

Is the good Senator [and I understand she is a good Senator] not aware the actions of her Government to evade establishing a maritime boundary under UNLCOS with Timor? 

Here are a few facts.

  1. Australia is currently and reluctantly in a United Nations Compulsory Conciliation process with East Timor to sort out the maritime boundary.
  2. Our Government  spent millions of dollars trying to evade this process which was available to Timor under UNCLOS.
  3. East Timor was only able to initiate the process, which they did in April 2016, because Australia has [a] opted out of international law arbitration under UNCLOS and [b] the Government repeatedly refused to talk with them about maritime boundaries.
  4. Timor is a poor country and has been forced by Australia's belligerence and evasive behaviour to spend far too much time, money and energy in the process of achieving their sovereign international law rights in the Timor Sea.
  5. The Press Release after the latest round of conciliation meetings is less positive that earlier releases raising concerns that Australia may be continuing a deliberate strategy to frustrate the achievement of East Timor's rights under international law.
  6. Minister Julie Bishop has been quick to remind that the Commission's report, due to be delivered to the Secretary-General of the United Nations by the 19th of September this year is 'non binding.'

So on one hand we laud UNCLOS and give $2M worth of technical assistance to help certain neighbours complete their maritime borders under UNCLOS in good time and on the other we spend millions evading the application of international maritime law as far as East Timor is concerned.

You wouldn't read about it.

On top of that we put Timor in the situation where they are spending what must be millions just to try and get a fair maritime border with Australia.

Are you kidding me? This double dealing dishonours our country, is unfair to our neighbour and must end.

Please sign the online petition calling asking the House of Representatives "to take all appropriate measures to assist the Government to finalise as soon as possible a fair and permanent maritime boundary between Australia and Timor-Leste, using median line principles, in accordance with current international law. We ask that this be done in good faith and as a matter of urgency."

We will be in Canberra tomorrow, the 14th of June, to give voice to this call.

A Glimpse into the Secret Process - UN Conciliation Press Release No 7

In my inbox overnight was the latest press release from the Permanent Court of Arbitration regarding the UN Conciliation going on with Timor-Leste, Australia and the Conciliation Commission. The glimpses we get into this secret process are rare. My impression based on the press releases is that, although remaining hopeful, the Commission is less optimistic than they were after the meetings in Singapore [January 2017]. 

 
 

This latest release following meetings in Copenhagen last week is slightly more positive than the one which followed the Washington meetings [March 2017]. That one contained what I saw as 'red flags.' I still think our Government must be playing 'hard ball'. 

My takeaway from all this is that now is the time to be active. Sign the online petition. If you can get down to Canberra on Wednesday the 14 of June for our visit to Parliament House please do.

Our PM has again proclaimed the importance of international law in maritime disputes - lets make sure the Government knows we are watching the Timor Sea and looking for consistency.

Its not rocket science. International case law sets out how the boundary should be drawn. There is no doubt that it begins with the median line.

Big fish, little fish and shrimp. Turnbull's talk in Singapore.

Australia's Prime Minister, the Rt Hon. Malcolm Turnbull MP, delivered an important speech at the Shangri-La Dialogue in Singapore last week. It was rich in irony for those of us who have supported East Timor's quest for the delimitation of their maritime boundary over many years.

He began by borrowing a Chinese proverb used by Singaporean leader Lee Kuan Yew:

"Big fish eat small fish and small fish eat shrimps".

From there he went on to insist that Australia's vision for the region was that is would be a place where the "rights of small states are untrammelled; where our shared natural bounty, our land, water and air is cherished and protected, and disagreements are resolved by dialogue in accordance with agreed rules and established institutions. This is a world where big fish neither eat nor intimidate the small."

Here's another one:

 
 

Two days later in a doorstop interview came this pearl:

" .. commitment to mutual respect, the rule of law, disputes being negotiated in good faith between the parties in accordance with law, that is the key .."

Come on. Really? Our relationship with East Timor in regards to their quest for a maritime boundary has been characterised by disrespect, belligerence and strategies to avoid the application of international law.

Right now we are in engaged in a UN Conciliation process to 'solve our dispute.' It is a process our Government tried desperately to get out of. 

The work of the commission, carried out secretly, is due to finish on the 19th of September. Indications [see our blog Red Flags] are that our Government is playing hard ball and are still seeking to avoid the application of international law.

It's time to remind our PM and our Government that they need to walk the talk in the Timor Sea. Especially now when the UN process may be at its most critical phase. 

Begin at the middle line. Make adjustments in line with international case law and get it done. Enough. The current duplicity dishonours us all.

Please sign our petition to the House of Representatives "to finalise as soon as possible a fair and permanent maritime boundary between Australia and Timor-Leste, using median line principles, in accordance with current international law."

Here's the link.

 

A Tale of the Missing Border in Timor Sea

27 April 2017

This article was first published on the webpage of the Sisters of Saint Joseph of the Sacred Heart.

The magnate who lives down the road from you has eyes on that lovely bit of land adjoining your two properties.

 
 

You'll have to go to Court, even though the expense makes you dip into what you've stashed away for the kids' education.

Still, if you win and you develop the land it will repay you, and you can then help set the kids up for life, plus improve your own house.  The land has actually been in your family for generations. Everything fell apart when that corrupt Council and its mercenary mayor tried to force you out years ago, fiddling the books, doing shady deals with those down the road, falsifying documents, and causing such distress.

No one knows how the Court will decide. But one of the worst things to have to endure is the attitude of the local media. They say that if you got that land and developed it, you'd probably waste the money. You don't know how to manage. You might fail. You haven't got a great track record in business. What would you know about anything, they say.

It all gets a bit tedious, really. How do they know how you'll manage? You've done some pretty amazing things, actually. You've done so well. When the Council came and tried to take your house, you stuck it out, and won. They backed off, and even though no one was put in jail, everyone knows about the corruption, and how they tried to get rid of you. Those down the road didn't help much. A lot of fence-sitting to see how things would pan out, and they made plans with the Council on how to carve up the whole site once you were gone. They changed at the very end, but it was a bit iffy for many years. But you didn't go, and you're still there. A bit of a thorn in the side, perhaps.

If your rich neighbours think they have a claim on the land, then they ought to go to the authorities, and sit down to make an agreement with you according to the law. You want the fence put half way between the two of you. Isn't that exactly what your neighbours down the road agreed with those on the other side of their property? So why won't they agree with you? The problem is, they've never taken you seriously. There's only a few of you, and your house is pretty small, not like theirs. Heck, with a place like that you'd wonder why they want your backyard too.

We ought to get a petition going. People ought to have a chance to say that you deserve a fair deal. And a fair deal is halfway, right?

Here's a petition and some background material. Please copy it, get some signatures and return the petition to the address stated.

It will be on the Parliament website in June, so people who go online can sign it there instead.

Let's make this a really BIG petition.

Susan Connelly rsj
 

Red Flags - The JSCOT Report and the latest PCA Release

So what is happening with the maritime boundary that Australia has committed to negotiating with East Timor?

The confidential nature of the United Nations Conciliation Commission, where five experts are working to help the parties ‘with a view to reaching an amicable settlement’, means that there is very little we can know.

The Commission is required to produce a report by 19 September 2017, which will then be delivered to the UN Secretary General.

The five Commissioners in the front row with a difficult task ahead

The five Commissioners in the front row with a difficult task ahead

In October last year a press release from the Commission said that the parties had agreed that they “should aim to reach agreement in the timeframe of the conciliation process.” Are we on track?

One public hearing and two recent publications raise red flags that should concern supporters of Timor’s quest for a fair border and motivate action now.

The JSCOT Hearing – an opportunity to ‘run down’ East Timor

The Joint Standing Committee on Treaties review of the CMATS termination was revealing. JSCOT is made up of Australian Members of Parliament and Senators and is required to investigate and report on matters arising from treaties.

Because part of the ‘package of confidence building measures’ negotiated under the UN Conciliation Commission included changing and terminating the CMATS treaty, JSCOT was requested by Foreign Minister, the Hon Julie Bishop MP to consider this action and table a report by the 30th of March 2017.

Why the rush? Because East Timor had given notice to terminate CMATS and that was to become effective on the 10th of April.

Submissions were invited and many supporters rallied. Our submission, one of 32 received is here.

A public hearing was held at Parliament House in Canberra on the 14th of March.

It was a ‘set up’ and reflected the condescending, patronizing tone that the Timorese have endured for years from Australian Government representatives.

Why would I suggest that?

Firstly, only two external witnesses were admitted. Despite many of the submissions expressing a desire to give evidence none were called. The Committee only heard from Professor Clive Schofield and Dr. Rebecca Strating, described as their ‘Academic Expert Panel’.

Amongst many academics who are experts on the Timor Sea, Dr Strating is the most consistently negative about Timor-Leste’s approach to delimiting the boundary and it seems was an intentional choice to back the position of DFAT and support what is evidently the Australian Governments communication strategy on the issue:

  • avoid discussing international law
  • maintain that the original arrangements are fair
  • push the notion the Timor could become a failed state and
  • ramp up fear of the Indonesia/Australia boundary unraveling

Secondly, it was apparent that the Chair, the Hon Stuart Robert MP, was aligned to this strategy and guided the hearing, which took only an hour an a half, to facilitate those key messages. It is clear, particularly in the video, that he is fond of Ms. Strating’s evidence.

Here are two examples from the transcript:

CHAIR: You seem to indicate that Timor-Leste's overt desire, driven by personalities, to have the pipeline go to Timor-Leste means they may well have been the architect of their own demise, which is why in the last decade no-one has developed anything.

Mr DANBY: I think you are over-interpreting the remarks.

CHAIR: Well, I put it to her: she did not say I was over-interpreting.

Dr Strating: I think that, paradoxically, Timor-Leste's ambitions to secure its sovereignty, and to secure its economic sovereignty as well, through economic development are undermining its capacity to develop.

And then this exchange at the end of the hearing:

CHAIR: Tremendous. Most enlightening. 'The architect of their own demise' is my favourite statement for the day. Thank you, Dr Strating.

Dr Strating: It is depressing, but if there is not some sort of compromise then that—

CHAIR: Like fifty-fifty?

Dr Strating: This is precisely why Australia has maintained, for a long period of time, its belief that the CMATS should be maintained, but—

CHAIR: Quite rightly.

And thirdly, it worked.  The one media article that came out about the hearing penned by AAP’s Lisa Martin carried the Chair’s favorite statement of the day “Timor may be architect of own demise” as its headline and included most of the ‘key messages’ delivered, principally by Dr Strating.

The JSCOT Report - Alternative Facts and Good Faith

JSCOT issued its report on the 30th of March supporting the amendments to CMATS and recommending ‘binding treaty action be taken.’ This was no surprise as the Government had already agreed on this course of action and JSCOT was not going to stand in its way.

As expected it incudes references to Timor-Leste becoming a ‘failed state’, Timor taking a ‘huge risk’ and the view that CMATS was fair. Only a handful of the 32 written submissions are referenced in the report and mostly when they supported these views.

The Committee’s view that “the CMATS Treaty was negotiated in good faith” is wonderfully destroyed in an “Additional Comments” section hidden at the very end of the report where the Australian Greens say they are:

“surprised by the Committee’s stated disagreement with the contention in many submissions that Australia behaved oppressively or unfairly towards Timor-Leste in the negotiation of the CMATS Treaty. It is manifestly clear that Australia behaved in a reprehensible fashion towards its fledging neighbour. The Greens would like to place on the record that Australia did not negotiate the CMATS Treaty in good faith, having spied on East Timorese Cabinet discussions regarding the Treaty in 2004. To assert otherwise would be to ignore a wealth of evidence against Australia.”

However what raised the biggest red flag in our analysis of the report was this statement at paragraph 2.19:

“In contrast, Australia favours principles of ‘natural prolongation’, which gives seabed territory that extends to the edge of a geomorphic continental shelf, to the Timor Trough (see Figure 2.1). The Timor Trough is a 3,500- metre trench 40 nautical miles from the coastline of Timor-Leste, dividing the two continental shelves. Delimitation according to this principle would result in Greater Sunrise falling within Australia’s maritime boundary. At the public hearing, DFAT confirmed that Australia maintains its position on the principle of natural prolongation.”

This assertion comes after the point made in the preceding paragraph that:

“Timor- Leste claims that the boundary should be drawn in the middle of the sea between the two states. These claims rest on the principle of ‘equidistance’ under which a median line should be drawn between Australia and Timor- Leste. Delimitation drawn according to this principle would see the sea border drawn significantly closer to Australia than Timor-Leste, and the majority of gas and oil reserves in the disputed territory would fall within Timor-Leste maritime boundary (see Figure 2.2)”

The report in its section on the Maritime Boundary Dispute says that many of the submissions support Timor-Leste’s position and that they “reference changes in international law” but conveniently omits the very clear evidence given by expert Professor Clive Schofield at the hearing.

In the hearing he said:

“The drafting of the United Nations Convention on the Law of the Sea took nine years to complete and was opened for signature in 1982. In a subsequent case in 1985 between Libya and Malta the International Court of Justice, on the basis of UNCLOS being introduced, dismissed geophysical factors in delimitation—that is, the geomorphology or the shape of the continental shelf and also the geology factor, so within 200 miles—that is, within 400 miles of opposite states—geophysical factors, natural prolongation principles, would no longer apply. The ICJ's wording was that they would be 'irrelevant to maritime delimitation'. So we have had a considerable shift away from natural prolongation which may cause issues for Australia in any delimitation negotiation with Timor-Leste if Australia's position still rests on natural prolongation.”

Not only does he debunk Australia’s ‘natural prolongation’ argument he goes on to validate the three step process advocated by East Timor in their Opening Statement to the Conciliation Committee on the 29th of August 2016:

“We have now something of a road map from International Court of Justice cases and other international tribunals. From 2009 in the Black Sea case between Ukraine and Romania the International Court of Justice introduced what has been termed the three-stage process, which develops from previous cases where there were two stages. The three stages really are: first, to define a provisional delimitation line based on equidistance unless it is unfeasible to do so; secondly, to look at factors that might lead you to shift that line one way or the other, such as the concavity of the coastline so that a country's jurisdiction is, if you like, squeezed off by neighbouring states; and, thirdly, to undertake what is termed a disproportionality test.”

This is remarkable. The Australian Government knows that its position on ‘natural prolongation’ is not in line with international law. It knows that the median line is the starting point under international law. And even though it is irrelevant it knows that there are not in fact two shelves.

And yet it March 2017 it asserts and confirms a position that it knows is not sustainable under international law.

These are the ‘alternative facts’ of the Australian Government regarding the Timor Sea.

Not right – but assert them anyway.

Is this the position that is being put cynically by Australia in the UN Conciliation Commission? If it is and if there is no fall back to the median line as a starting point I would say this:

  1. the negotiation by Australia is not being conducted in good faith
  2. there will be no agreement reached by the 19th of September and
  3. the Commission will debunk Australia’s position as inconsistent with international law in its report.

As supporters of Timor-Leste’s position we need to ask our politicians to state their position on the median line.

The Government of Australia says it is committed to negotiate a maritime boundary with Timor-Leste in good faith. Will the Government agree that the starting point for that boundary is the median line between the two coasts consistent with international law?

If not why not? 

The latest Commission Release – hosing down expectation

What adds to concerns arising from the JSCOT hearing and report is the latest Press Release from the Conciliation Commission issued by the PCA. It is the first release that is trying to ‘hose down’ expectations.

In contrast to the Press Release after Singapore [Optimism Pervades Recent Meetings with Conciliation Commission - 13 October 2016] and the Trilateral Joint Statements of 7 and 24 January 2017 this one talks about how these are “difficult issues for any State” the process is a “marathon, not a sprint” and that they “still have work to do.

My reading of this is that Australia is being difficult and that things are not going well.

This release also begins to put the Commission a bit more at arms length from the parties saying things like “the Commission is not here to decide the parties dispute”, the goal is to “help them find an agreement that is both fair and achievable, in accordance with the UN Convention on the Law of the Sea” and that “we will continue to meet with the Parties with that goal in mind.”

This change of tone rings alarm bells and indicates that Australia’s fine sounding public statements are not indicative of their behavior in the secrecy of the Commission.

Responding

We should be very concerned by this and assume that Australia is not playing fairly. Now more that ever we need to let political class know that we are watching this process and expect Australia to respect international law and be a good neighbor.

Please sign our petition and stay tuned for a push for a Senate Inquiry. Contact your local politician – we are happy to help. Get in touch with us here.

And be prepared for more undermining talk – more blaming Timor for taking a risk, for becoming an architect of its demise, and being on the way to become a failed state.

This is the dirty bag of tricks needed when you will not countenance giving your neighbor their due rights under international law.

What a failure in terms of Australian National Interest.

Our Defence Policy White Paper has as one of its primary themes a close and positive relationship with Timor-Leste in the context of a growing China. We should be maximizing our contact,  our business partnerships and our high-level interactions – but instead we disconnect, undermine the countries reputation and assert ‘natural prolongation’.

If what we are seeing over the next few months is more of the same – what a tragedy that would prove to be for us and our Timorese neighbours.

Let’s be active now – we cannot wait until September.

 

 

 

 

Formal Petition and new Background Material

Here's an opportunity to do something practical that we can all do towards finalising the border in the Timor Sea. But it has to be done as soon as possible.

Please download this petition and get it signed by as many people as you can.

You can also use this simple background material - just two pages - plenty of images and easy text to help people understand the situation.

This is something we can all do. Take the petition and the flyer to your groups, churches, schools etc. and get people to sign. No need for addresses. Anyone who can read, write and understand can sign, as there is no age limit.

We can all do this!

Timor's Veterans Speak Out

There are many wonderful submissions to the Joint Standing Committee on Treaties that speak up for East Timor's rights to have a maritime border. There are 32 Submissions now available that can be accessed on the Submissions Webpage.

What follows here is the submission presented by former independence fighter Jorge Alves 'Wemoris' on behalf of Timor-Leste's veterans, in Timor called the 'former combatants'. I encourage you to read it.

Dear Chair, Deputy Chair & Members,

We attach via email our submission to your Parliamentary inquiry into Consequences of Termination of the Treaty between Australia and the Democratic Republic of Timor Leste (RDTL) on Certain Maritime Arrangements in the Timor Sea (CMATS).

Our submission expresses how we the Veterans, known in our country as former Combatants, think and feel about the conflict between Australia and Timor-Leste over Australia’s refusal from 1999 on to settle permanent maritime borders with RDTL.

We also wish to inform the Committee that we the Veterans of Timor-Leste and the Veterans of Australia, have a deep and abiding relationship that grows deeper year by year. This year 2017 will be the third year our Veterans have visited Australia at the invitation of the National RSL and respective State Branches to participate in ANZAC Day and associated activities. Our Chief Veteran Kay Rala Xanana Gusmȃo comes on each visit.

We also have a close relationship with the War Widows of Australia and both the RSL and the War Widows have visited Timor-Leste and participated in our similar commemorative activities. Further we have met with your Veterans Affairs Department who have showed us how the Veterans are honoured and cared for in Australia. It is impressive.

We also note that it was the NSW RSL who in 1975 at their State Branch called upon the Australian Government to help us after we were invaded by the Indonesian military.

We also have a very close and special relationship with Sparrow Force Australia’s first Commandos, who survived due solely to the efforts of our civilian citizens. Over 40,000 and estimated to be up to 60,000 civilians were murdered by the Japanese Imperial Army for looking after Australian soldiers. The Australian soldiers called it a Debt of Honour they owed to all Timorese and felt it keenly and many took that to their graves. The few remaining alive honour this and their families are carrying on their legacy; as do some of the soldiers serving and retired who were part of Interfet in 1999 and the ISF in 2006.

CMATS termination and its consequences is but one part of a much bigger story, well known to all Timorese from the poorest to the richest; from Dili to Baucau, to Batugade, to Same and so on right around the country.

We fought and paid dearly to reclaim our independence, our sovereignty, for the right to claim back, know and call our borders our own. We know that the Australian Government also values its borders. So we know that you will understand why it is that we take our borders so seriously, enhanced by our particular history.

We have not yet finished that journey to full independence and for us we feel that we cannot without marking our maritime borders, especially with Australia, who has long denied us our right. Firstly by saying yes we shall do the borders with you and then not, and pushing the agreements we now have, and then by stopping us from going to international courts like the ICJ and ITLOS.

Australia did this just when our independence was reclaimed. That is took away the right for us to seek to have any dispute on maritime borders with Australia taken to those courts. We are told that this is legal but it is not quite neighbourly. It also made us believe even more that what Australia was claiming to be their area in the Timor Sea was not right, as if it was they would have been happy to have the international court deal with it if the countries could not agree. We still believe this and now have much better legal information to support our belief. We are also saddened that our leaders and our government have had to be preoccupied with this matter using our scant resources financial and human. You would know that we could find plenty of things to expend these resources on.

It is good to note that the respective governments RDTL and Australia have reached a shared understanding of the termination of CMATS for three reasons. 1. It shows that progress has been made through the good offices of the Compulsory Conciliation Commission. 2. That a United Nations procedure is working to equalise a bigger more powerful state with a smaller less powerful state for the purposes of state to state negotiations. 3. It removes one area of discord in this long running conflict over not settling permanent maritime boundaries.

We further noted that when RDTL and Australia announced in January their respective positions on the ending of CMATS, that both also announced that they would work to settle permanent maritime borders by the end of the Compulsory Conciliation Commission’s term in September this year.

Coming from Australia we were pleased to read that, but remain cautious as Australia has said before it would do this, but never did, and in our view never had any intention of so doing. That is why we ended up with the agreements regarding the Timor Sea and some 18 years later as yet no permanent maritime borders.

The Australian Government made it clear in 1999 at our restoration of independence, that the settling of permanent maritime borders with our country was not their intention. What the government did make clear was that they simply wanted to continue the terms of the Timor Gap Treaty of 1989 between them and Indonesia. A treaty that was done with a neighbour that the United Nations and the Security Council did not recognise as being lawfully in then Portuguese Timor.

The matter of our illegal occupation was listed as well on the United Nations Committee that deals with decolonisation. We saw the Timor Gap Treaty as illegal, so it could not continue. That was made clear by our leaders. But as successive Australian Governments had extended formal recognition to Indonesia to be able to continue negotiations on resources in the Timor Sea, we were not surprised. Disappointed bitterly, yes.

CMATS obviously has not worked, as it is now some ten years since it was signed and nothing has happened at all. It became another area of conflict, with no proper provision in it to settle conflict. This was reinforced by the Compulsory Conciliation Commission who said in their decision on whether or not they had the right to exist after Australia objected to their very existence, that CMATS was an agreement NOT to settle disputes. That is what the Australian Government has achieved, putting RDTL in a position where it had no access to international courts or no way to get Australia to sit and settle maritime borders. The Compulsory Conciliation Commission was one provision of the law of the sea (UNCLOS) that Australia could not remove itself from, and RDTL had to action it to get Australia to sit at the table with it.

CMATS did not become what it was referred to at its outset-a creative way to get over not marking maritime boundaries. We the Veterans saw it as a creative way for Australia to get access to sea territory and resources, we believed to be ours and still do. However we know that Timor-Leste leaders were stuck, and had to agree to these arrangements, as Australia had time and wealth on its side.

Our view is that all it did was delay what we have a right to do and that is to have our borders marked, both land and sea. We have been doing that with Indonesia and yes there is one bit of land border left, where it is not so easy, but the goodwill and the good teams are in place working towards agreement. That ideally should have happened between our two countries but Australia refused to do so, by saying well we cannot agree. International law we are told is clear on how maritime boundaries are marked when countries are close, under 400 nautical miles apart and their coastlines are opposing.

That is our two countries. The border starts with the marking of what is the median line that the experts seem to call equidistant.

We believe that Australia would not agree because according to the law that makes the median line the starting point, that Australia's position is one that would give Australia more than it is entitled to under the law. We have listened to lawyers and technical experts in the law of the sea, and international law and know that Australia cannot continue to say that they can have our seabed resources that are within 30 nautical miles of our coastline. You ask every villager in Timor-Leste and even they know that is not right. I am told by our Australian friends, many Veterans like us and they tell us that they say the same and that if you ask any taxi driver or the people at the pub on Friday night, they say the same.

We remain puzzled as to why Australia would do this. We are hopeful though that with Australia having to justify its position on natural prolongation of the continental shelf, as we see it called, it will be seen as unsustainable as it must be to the experienced Compulsory Conciliation Commissioners. We think that this must be the first time that Australia has had to try and justify its position with law and we are told and we believe that they will not be able to do this.

In conclusion we want to thank JSCOT for giving us the opportunity to say how we feel, and we hope that JSCOT Members accept our submission in the spirit of our Veterans to Veterans friendship and goodwill that we feel towards Australia, despite our difficult history. We often look to Australia for many things and we hope to do this in terms of international law as well, once we have our maritime borders done.

We believe that the consequences of CMATS termination are positive as it does allow our countries to talk and negotiate, so that has to be a good consequence. We hope that members of the committee can look beyond CMATS itself and see that it is a small part in a relationship that has had highs and lows, and we hope that more highs are coming.

We thank you and invite you to please visit and for those who have already to visit again. We the Veterans will make you very welcome in the Timorese way as our honoured guests. We are also ready to talk to you as well at your Committee.

Yours in solidarity and friendship

Jorge Alves ‘Wemoris’ Veterans National Secretariat, Taskforce for National Interest 

Response to Saturday Extra

On the 18th of March Rebecca Strating was interviewed by Geraldine Doogue on the Saturday Extra program on ABC Radio National. The program can be heard here.

No where in the discussion was there mention of the reasons for Timor-Leste taking up the CMATS Treaty's provisions for termination, other than the non-exploitation of the resources within 6 years of signing. Omission of the alleged Australian spying on the Timorese negotiations before the signing of CMATS is unfortunate, as this was the catalyst. The discussion this morning completely exonerated Australia through this omission, insinuating that the whole termination procedure was the responsibility of Timor-Leste. 

The Timorese have dropped the espionage case as part of the effort to bring the sovereignty issue to a close, but as an Australian, I haven't dropped it. It is an utter disgrace. 

Again, in the short discussion of the 2002 signing of the Timor Sea Treaty, there was no mention of the Australian withdrawal from the two international bodies which oversaw maritime boundary discussions, an act which Australia accomplished just two months before Timorese independence. This act suggests that Australia knew full well that the arrangements would not have withstood international scrutiny. The result was that a small nation just emerging from illegal occupation was forced into dealing with the sophisticated legal machinery of Australia. That resembles bullying to me. 

Furthermore, Australia has benefitted to the tune of 2 billion dollars from a now depleted area on the western side of the JPDA, Laminaria-Corallina, which is 1 billion dollars more than we have spent on aid in Timor. We got all the tax revenue and Timor got none. In effect, Timor is the one who has given us aid.

Nowhere in the discussion was there mention that the termination of the CMATS Treaty is a step towards Timor-Leste securing the final part of its sovereignty, its border with Australia. The final comments alluded to that in passing, but in a way which suggested that the resources should be determined first, then for the parties to look into sovereignty. The only way to determine who owns what is to decide on sovereignty, surely. Anyone who has installed a backyard fence knows that. If the maritime boundary was set in accordance with international law, then Timor would have 100% of the Greater Sunrise area, not the 50% which Australia was claiming. 

The comments about Australia having a "fragile state" next to us should the Timorese go ahead and claim their sovereignty rankles very much with Australians who understand the deceit and greed displayed by Australia regarding East Timor over decades. Rather than engaging in "what if", more benefit may be found in investigating the level of Australia scholarships offered to the Timorese, and calculating the benefits of a major increase in that level.

 I can just image the hoo-haa, the angst, the horror, if any nation tried to do to Australia what we are doing to Timor-Leste.

 Anyway, as an Australian, I think the government has to duty to finalise our border. There's 1.8% missing: the bit opposite the coast of Timor-Leste.

Submission to Joint Standing Committee

Certain Maritime Arrangements - Timor-Leste Submission 17

SUBMISSION

Consequences of termination of the Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS)

from

Timor Sea Justice Forum NSW (TIMFO)

10 March 2017

Contact: Susan Connelly rsj

The Timor Sea Justice Forum NSW welcomes the opportunity to make a submission on the termination of the CMATS Treaty. (See Appendix 1 for comment on the National Interest Analysis (NIA) provided as material relevant to matter.)

The Forum would be very pleased to have the opportunity of a representative appearing in person and giving evidence.

1. Background

The CMATS Treaty was negotiated between 2004-2007. It dealt with the resources of the Great Sunrise area, the majority of which lies in a disputed area, with the remainder in the Joint Petroleum Development Area (JPDA) which is governed by the Timor Sea Treaty of 2002. Because the area lies partly in a disputed area (82%) and partly in the JPDA (18%), it was decided that the CMATS Treaty was necessary to treat the fields as a single entity. See Appendix 3 for map.

In 2012-2013 the Timorese government alleged that the negotiations over CMATS had been compromised because of Australian espionage. It was alleged that listening devices had been installed in the Timorese Prime Minister's office in conjunction with an AusAid program through which Australia was assisting Timor-Leste to rehabilitate its infrastructure after the violence during the Indonesian military's withdrawal in 1999.

As a result of the allegations, Timor-Leste declared the Treaty null and void and took Australia to Court in The Hague. Subsequently, Timor-Leste reiterated its requests for formal discussions with Australia over the finalisation of the maritime border, but Australia refused.[1]

Following the spying allegations, and in order to pursue a fair and permanent border, Timor-Leste had no option but to invoke compulsory conciliation under the United Nations Convention on the Law of the Sea (UNCLOS), and Timor-Leste and Australia are now involved in that process. CMATS provides for termination under certain circumstances, the terms of which have been legally met.[2] Australia has agreed to the termination, and Timor-Leste has agreed to not proceed with the espionage case against Australia.[3]

2. Overview

The consequences of decisions regarding the termination of the CMATS Treaty are serious and will be long-lasting.

2.1 Consequences of not supporting CMATS termination

First, if the parliamentary committee recommended against termination it would contradict the announced intentions of the Australian government. Such an action would delegitimise Australia's current negotiations in the conciliation commission, and would jeopardise future negotiations. It would show a profound lack of goodwill and good faith, and undermine the confidence building measures that have characterised the deliberations so far.[4]

Not to proceed with the termination of CMATS would reverse the process towards final resolution of the Timor Sea issues. It would prolong the life of a running sore which has influenced Australian decisions detrimental to the Timorese people's welfare and the Australian people's integrity for decades. It would destroy what little regard many have for the capacity of Australian governments to treat smaller and weaker neighbours with dignity and good faith. It would further erode any trust in Australia which the government and people of Timor-Leste may have salvaged up to this point, increasing the already substantial mistrust of Australia in this shameful process.

2.2 Consequences of supporting CMATS termination

Second, however, the termination of the CMATS Treaty is an opportunity for Australia to move towards redressing historical errors, to enhance Australian international standing, to assist the economic viability of a small but strategic neighbour, and to protect regional security.

3. History

The history of successive Australian governments' dealings with East Timor is a deeply flawed saga, with the exception of the eventual upholding of Timorese rights at the end of 1999. The matters of the Timor Sea have been closely intertwined with government decisions and actions for decades.

3.1 Timor Sea influence on Australian decisions

Underlying the Australian support of the Indonesian invasion and occupation (1975- 1999) existed the ongoing desire to exploit the resources of the Timor Sea in a way that was favourable to and easy for Australia. For example, in 1974 government officials stated:

"Indonesian absorption of Timor makes geopolitical sense. Any other long-term solution would be potentially disruptive of both Indonesia and the region. It would help confirm our seabed agreement with Indonesia. It should induce a greater readiness on Indonesia's part to discuss Indonesia's ocean strategy." [5]

Ambassador Woolcott wrote from Jakarta on 17 August 1975:
"It would seem to me that this Department (Minerals and Energy) might well have an interest in closing the present gap in the agreed sea border and that this could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or independent Portuguese Timor."[6] 

3.2 Timor Gap

Australia speedily bestowed on Indonesia official recognition of sovereignty over Portuguese Timor in 1979 and ten years later divided the resources of the Timor Sea Gap area 50/50 with Indonesia, despite the illegal and unrecognised nature of the annexation. More recently, the desire for maritime resources from the area has moved Australia to continue to pursue claims to resources to which it is not entitled under current international law, e.g. the now depleted Laminaria-Corallina fields.

3.3 Withdrawal from UN instruments

Just two months before the declaration of Timorese independence in 2002, Australia withdrew from the maritime boundary jurisdictions of UNLOS and the International Court of Justice, thus forcing Timor to deal with Australia without recourse to a recognised judicial umpire, and to evade international measures for deciding where boundaries should lie.[7]

4. Australian International Standing

4.1 Recent Statement

Australia's poor record of observing international standards in relation to the Timor Sea is further illustrated currently regarding the South China Sea. Official Australian advice concerning problems in that area is that international standards should be followed. The Foreign Minister has said:

"..we urge the parties, the claimants to resolve their differences peacefully, negotiate as long as the outcome is in accordance with international law, or resort to arbitration as the Philippines did through UNCLOS."[8]

Nevertheless, the Foreign Minister has taken pains to point out that in the matter of the Timor Sea, the findings of the compulsory conciliation, conducted by the Permanent Court of Arbitration of which Australia is a member state, are "non-binding".[9]

See Appendix 2 for further comment involving the "non-binding" nature of the process.

If the Australian government was as enthusiastic about observing negotiations and resolutions concerning the Timor Sea as it is about the South China Sea we would be accorded greater respect by other nations in our region, and the world at large. The readiness to appear to cooperate only when it suits leaves Australia vulnerable to accusations of hypocrisy from neighbouring nations, thus reducing trust. There is already enough scepticism about Australia's position, goodwill and intentions concerning the conciliation negotiations. Perhaps government officials do not yet realise the depth of contempt for Australia which remains as a result of the alleged spying, both among Australians and Timorese.

The opportunity now exists for Australia to act as it speaks, and operate according to international norms to finalise the maritime boundary with Timor-Leste.

See Appendix 2 for further comment on the avenues open to Australia to bring this matter to a speedy conclusion.

5. Economy

5.1 Disparity between the two nations

The termination of the CMATS Treaty opens the way for the delimiting of a maritime boundary between Australia and Timor-Leste, a move which will have effects on the economies of both nations. In this regard it is important to consider the relative wealth of both. Timor-Leste is proud of its advancement on the Human Development Index (HDI) to number 133,[10] while Australia is at Number 2. The GDP of Timor-Leste in 2016 was $4.975 billion dollars while Australia's was $1,188.764 trillion dollars.[11] Obviously, the disparity reflects far more than difference in population (Australia: 23.1 million; Timor-Leste: 1.2 million).

While there is nothing in this matter which should be considered from the point of view of “charity”, the extreme disparity between Australia’s and Timor-Leste’s prospects underlines the importance of a swift and fair resolution.

5.2 Justice

If the setting of a new boundary is done fairly, the Timorese would gain at least the bulk of the resources of the giant Greater Sunrise fields, valued in the range of $40 billion.

These fields are East Timor’s last remaining natural resource to provide the wealth needed to provide education, health, infrastructure and job creation for future generations of Timorese people. Rather than Australia taking 50% of this wealth (under the 2006 CMATS Agreement) or 80% (under the 2002 Timor Sea Treaty), we should simply agree to a median line border which would ensure that the Timorese received that share Greater Sunrise which is due to them under international law.

5.3 Indonesia

Concerns have been raised in some quarters about Indonesia's rights in regard to the Timor Sea. If Indonesia has problems, then Indonesia has the capacity to address them in appropriate ways. These matters should not be used to prolong or obfuscate the proceedings involving Timor-Leste. Indonesia is not the problem here. The problem has been, and remains, the Australian unwillingness to act fairly in regard to Timor-Leste. The complicated factors involving the lateral boundaries affected by median line delimitation are not insurmountable if good faith and willingness to engage honestly are valued principles.

5.4 Strengthening relationship with Timor-Leste

The termination of the CMATS Treaty allows for Australia to put right our present relationship with the Timorese people. This can be done by immediately negotiating a new border in good faith, finalising it as soon as possible, and ensuring that median line principles prevail as the basis of decisions, alongside observance of all relevant and current United Nations Conventions.

6. Regional Security and Stability

6.1 Economic basis of security

In economic terms, it is in Australia’s long-term national interest to have neighbouring nations such as East Timor which are stable politically and whose populations have growing standards of living so the people live in hope and optimism rather than anger and despair. This brings peace to our immediate region.

Moreover, it is to Australia’s long-term economic interest to have a growing middle class in neighbouring countries such as East Timor. The people of East Timor can then purchase more of our exports and avail of our services such as tertiary education. A growing and prosperous East Timor is to the benefit of both countries.

6.2 Vacuums tend to be filled

The economic prospects of the Timorese people directly affect regional security and are of concern to Australians given Timor-Leste's geographical proximity. If Australia does not fulfill its obligations as a fair neighbour, there are others which may desire to fill the vacuum.

The contributions of China to the development of Timor-Leste are easily seen. Important government buildings, and now extensive roads are part of the assistance now being given to Timor-Leste. As well as calling on the China to obey international law in the South China Sea, Australia is well advised to consider carefully the influence which that nation already wields in the region, and may wield in the future if Australia pursues policies which alienate neighbours.

6.3. Completion of Australia's border

Nearly two per cent of the Australian border remains incomplete, that is, the section directly opposite the coastline of Timor-Leste. It is interesting that a modern and rich nation such as Australia has not undertaken to finalise its borders. Australians have the right to a compete border. See Appendix 3 for map.

7. Conclusion

In all, the termination of the CMATS Treaty is a crossroads for Australia. Decisions can be made as to the best way of approaching all the attendant problems. The Australian government could choose to operate from a position which interprets "national interest" narrowly and greedily, or it could choose to make decisions which observe both the spirit and the letter of international law and which therefore benefit the most vulnerable.

If the Australian government takes the latter course, Australia would contribute to the development which Timor-Leste has been denied for so long as well as ensuring the prosperity and stability of a very close neighbour whose history is tightly entwined with ours.

The Timor Sea Justice Forum NSW urges the Joint Standing Commitee to support the termination of CMATS. This is an important and necessary step towards resolving this long-term difficulty with our poorest neighbour.

We encourage the committee to go further and recommend that the government move as quickly as possible to finalise negotiations for a fair and permanent border with Timor- Leste.

8. Recommendations

8.1  That the committee upholds the government's decision to terminate the CMATS Treaty in full

8.2  That the committee urges the government to take all appropriate steps to finalise the maritime boundary between Timor-Leste and Australia

8.2.1  according to current international law and standards

8.2.2  using median line principles

8.2.3  in good faith

8.2.4  with all possible speed

The Timor Sea Justice Forum NSW (TIMFO) thanks the Committee for considering our submission. We would welcome the opportunity to appear at a committee hearing.

Appendix 1


Significant inclusion and omission from NIA

It is interesting that the National Interest Analysis (NIA) [1] provided is careful to note that in the Joint Petroleum Development Area (JPDA), 90% of the resources go to Timor-Leste and 10% to Australia. It would be unfortunate if the intention to include that percentage share was to suggest that there was an underlying "generosity" on Australia's part, or that Timor-Leste was receiving the best end of a bargain. In fact, if international standards had been applied in 2002 when the Timor Gap Treaty was re- negotiated as the Timor Sea Treaty covering the JPDA, 100% of the resources would be Timor's. Furthermore, there is no mention of the considerable downstream benefits which Australia gained from the exploitation of Bayu-Undan in the JPDA. Yet between Point 6 and Point 7 of the NIA there is a very large historical Timor Sea gap, that is, there is no mention of the alleged espionage by Australia on the Timorese negotiators involved with the CMATS Treaty. These allegations occasioned Timorese legal challenges, caused Australia well-deserved embarrassment, and contributed to the termination of the CMATS Treaty. The fact that Timor-Leste has withdrawn its legal case against Australia in this regard has done little to remove suspicion from the minds of Australians who are increasingly frustrated and disappointed over successive governments' treatment of our wartime friends.

It may be argued that spying allegations are irrelevant to this exercise, but then one wonders why there is mention of Timor's share of the aforesaid upstream benefits, which appears equally irrelevant. Both the omission and the inclusion have the effect of putting Australia in a positive light.

Given the history of the way Australia has treated the Timorese people from World War II onwards, any such attempts to enhance positive Australian images and ignore the less positive simply repeat the historical Australian sacrifice of Timor for national gain. They remove from "national interest" anything which involves fairness or integrity.

Appendix 2

Comment on Articles in Annex V

According to the rules of the Conciliation under the Permanent Court of Arbitration, the Australian government could indicate to the Timorese government that it is willing to come to an amicable solution and finalise the Timor Sea question without waiting for the determination of the Compulsory Conciliation.[1] If the Australian government, through the words of the Foreign Minister,[2] can choose to isolate and emphasise the "non-binding" nature of the findings of the conciliation, as defined in Article 7,[3] it could equally well isolate and emphasise the freedom to bring the matter to speedier and friendlier conclusion, granted by the conciliation process in Article 5.

Appendix 3

Maps

http://www.atns.net.au/objects/Timor.JPG

http://www.atns.net.au/objects/Timor.JPG

http://www.ga.gov.au/__data/assets/image/0013/15142/AMJ_Australia_a0-display.jpg

http://www.ga.gov.au/__data/assets/image/0013/15142/AMJ_Australia_a0-display.jpg

End Notes

These notes are for references without hyperlinks

[5] Wendy Way, ed., Australia and the Indonesian Incorporation of Portuguese Timor, 1974-1976,(Canberra: Department of Foreign Affairs and Trade, 2000), 58.

[6] Way, ed., Australia and the Indonesian Incorporation of Portuguese Timor, 314.

Foreign Minister, China and the Timor Sea

In a doorstop interview with journalists in Washington DC this week Foreign Minister Julie Bishop was asked to clarify Australia's position on the South China Sea.

She was forthright in her response. For me this was the most interesting part:

 
 

So how is this position consistent with Australia's approach to the Timor Sea?


1. Resolving Peacefully? ... yes. No one has brought their guns to town!


2. Negotiating as long as the outcome is in accordance with international law? ... well this remains to be seen.

It appears that negotiations are now taking place facilitated by the Conciliation Commission - BUT- will the outcome be in accordance with international law? Will Australia agree to a boundary that respects all of Timor-Leste's entitlements as provided for under UNCLOS? One that follows the three step approach to boundary delimitation accepted in case law? 

 
This is "the area of the Timor Sea claimed by Timor-Leste as subject to its exclusive sovereign rights under international law" Anything above the black line is irrelevant to the Australia/Timor-Leste boundary negotiations and is yet to be determined with Indonesia. 

This is "the area of the Timor Sea claimed by Timor-Leste as subject to its exclusive sovereign rights under international law" Anything above the black line is irrelevant to the Australia/Timor-Leste boundary negotiations and is yet to be determined with Indonesia. 

 

3. Or resort to arbitration? ... not possible. Bishop recommends this in the South China Sea knowing full well that Australia denies East Timor this option because of its 2002 withdrawal from jurisdiction. So this is a blatant case of 'do as I say ... not as I do". In other words - hypocrisy. Australia was dragged unwillingly into the Compulsory Conciliation [non binding] now underway. It refuses to participate the arbitration process [binding] that it suggests others use to resolve their disputes.

If there is to be consistency in Australia's talk on the South China and its actions in the Timor Sea it should:


1. negotiate a border entirely consistent with the three step approach developed by case law which uses the middle line as a starting point. 


2. not entertain wheeling and dealing over Greater Sunrise Development 


3. agree to submit to international arbitration if the current negotiations fail to reach an agreement by the September finish of the Conciliation Commission.

It is time for the Government of Australia to step up and show some consistency in the position regarding the South China Sea and their actions in the Timor Sea. If we are keen to be seen as a supporter of international law - then we must eliminate the gap between our words and actions.