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