The Border with the Dog's Hind Leg

On Tuesday 6 March 2018, Timor-Leste and Australia signed the new Maritime Boundaries Treaty in New York. Agio Pereira, Deputy Minister for the Delimitation of Borders Timor-Leste, and Julie Bishop, Foreign Minister of Australia were the signatories. The event was witnessed by His Excellency António Guterres, Secretary-General of the United Nations.

The Timorese people are to be congratulated for their diplomatic skills and commitment to justice in gaining this resolution.

It has not been without immense difficulty.

A few reminders as to the extraordinary nature of this triumph:

Timor-Leste (then East Timor) suffered overwhelming destruction just 18 years ago as Indonesia left after a 24 year occupation. Australian government assistance given from 1999 onwards was a turn-around from the official Australian cooperation with Indonesia which had facilitated the 1975 invasion and subsequent occupation.

It is to our shame that the prospect of financial gain from the resources of the Timor Sea figured in the Australian complicity in the Indonesian invasion and occupation of Timor.

Australian Ambassador Richard Woolcott sent a cablegram to Canberra from Jakarta on 17 August 1975, a few months before the invasion:

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.

The official Australian compliance with Indonesian designs continued for decades. 

Gough Whitlam, the Labor Prime Minister in 1975, tacitly endorsed Indonesian claims to sovereignty. The Liberal-Country Coalition Government under Malcolm Fraser (1975-1982) that succeeded the Whitlam Government publicly supported Indonesian claims. Despite the Labor Opposition's earlier condemnation of the annexation, its government under Bob Hawke (1983-1991) maintained the Australian government's support of Indonesia. The next Labor government under Paul Keating (1991-1996) actively sought to strengthen the relationship with Indonesia and pursued closer ties with the Indonesian military. Keating spoke of President Suharto's New Order government as "beneficial" and opposed allowing human rights to get "in the way of the relationship between Australia and Indonesia." The succeeding Coalition government led by John Howard (1996-2007) continued the policies of the previous decades. Howard described Suharto as a "very skilled and sensitive national leader", while his deputy Tim Fischer said that Suharto "was perhaps the world's greatest figure in the latter half of the 20th century."

Between 1975 and 1999 the Timorese people suffered the violent loss of up to 183,000 of their number. Men, women and children.

During the occupation in 1989, Australia and Indonesia agreed on the Timor Gap Treaty, bestowing on each other a 50/50 share of the resources of the Timor Sea in a limited area.

The Timor Gap Treaty was re-negotiated in 2002 with the newly independent nation of Timor-Leste. The previous Australian agreement with the illegal occupier was thus replaced by the Timor Sea Treaty. The split of the resources through this Treaty was 90/10 in Timor's favour. This was claimed as a "generous" Australian initiative despite all the resources being on Timor's side of a half-way line.

Come 2004 and we find Australia forgetful of its 1999 humility, courage and friendship, and descending into old tricks. Spying, for goodness sake. Spying, not on a major world power, but on a small neighbour still reeling after the brutality of 1975-1999. The spying allegations concerned the Greater Sunrise oil and gas fields towards the east of the Timor Sea.

The spying saga is not over. Bernard Collaery, intimately involved in pursuing the truth of the matter, is soon to release a book.  

Australia continued its opposition to Timor's efforts to come to an agreement over the border based on international law. Finally, Timor-Leste took the only option open to it - to call in the United Nations. Using the formal process of "Compulsory Conciliation" Australia found itself obliged to cooperate. Australia's six objections were overruled. (Lesson: when you're very loud about other nations' obligations to obey the rules, don't try to squirm out of the process yourself.)

Timor-Leste, always an intrepid little group, took the enormous risk of terminating an intervening Treaty which had sought to divide the revenue from Greater Sunrise between Australia and itself. This was the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). The original Australian position had been 82% to Australia and 18% to Timor, revised in this Treaty to 50/50 each, on condition that the Timorese did not even mention the words "maritime boundaries" until 2056.

The Timorese government realised that the only way to secure the sovereignty provided by a secure border was to terminate this Treaty. The accomplishment of that feat in 2016 was a gamble which paid off. It paved the way for the current deal. International law now decrees that the border in the Timor Sea is at the median line.

This of course is nothing new to other nations. Median line principles in similar circumstances have long been accepted as the fairest practice.

There are numerous unresolved issues remaining. The major one will be the way the resources are exploited, and Timor is at odds with both Australia and the oil companies in that regard. However, a huge hurdle has been successfully cleared. Even Australia can at last claim to be operating according to international law, as the Foreign Minister stated in her speech at the signing. This happy progress is thanks to the tenacity and resilience of one of the world's newest nations, Timor-Leste.

Timor, you've saved our bacon once again! Australians can claim that their government has done the right thing at last. Thank you, Timor!

What remains for fair-minded Australians to do is to require our government to ratify this new Treaty on Maritime Boundaries as soon as possible. No more dragging the Australian chain! No more trickery dressed up as "national interest".

Rather than hand-outs, Timor-Leste wants to create industries with all the associated infrastructure - cities, supply chains, roads. Genuine Australian concern would assist in this remarkable effort towards self-sufficiency.

Please, write to the members of the Joint Standing Committee on Treaties (JSCOT).

Possible points to make:

  1. Acknowledge: Australian cooperation in signing the Treaty
  2. Request:

·       that JSCOT and relevant government departments observe all due processes connected to this Treaty;

·       that the Treaty be ratified promptly;

·       that JSCOT members advise their political parties not to pressure Timor-Leste concerning the means of exploiting the  reserves;

·       that JSCOT members encourage their political parties to engage with the government of Timor-Leste in a spirit of neighbourly
        concern to maximise Timor's prospects of self-sufficiency in the establishment of industries related to Greater Sunrise;

·       that all Australian political parties interpret "national interest" to include regional stability and justice for poorer nations.

Here is the link to the Committee which includes names of the Members and their addresses:


Other reading:

Frank Brennan: Edging closer to a just regime in the Timor Sea


Don Rothwell: Australia and Timor Leste settle maritime boundary after 45 years of bickering


Kim McGrath: How Australia crossed the line


ABC: Xanana Gusmão attacks Australia and the UN over maritime boundary talks

The End is Nigh!

It seems that after a long history, the maritime boundary between Australia and Timor-Leste has been finalised. Media reports state that a treaty between the two nations will be signed in New York on March 6. Acceptance by the Timorese indicates that the agreement is favourable, that is, that the median, or half-way line, governs the arrangement.

Interestingly though, the means of exploring for and exploiting the resources has not been finalised. The Timorese preference is for a pipeline to Timorese territory, entailing the development of new cities on the south coast with associated agriculture and industries. In that case, Timor-Leste would receive 70% of the revenue sharing. The oil companies prefer floating platforms with the resources linked to a  pipeline to Darwin. In that case the Timorese would receive 80% of the revenue. This decision will not be made by March 6.


Let us watch developments. The last thing which should be said, regardless of the outcome, is that Australia has been in any way "generous". This will be claimed by certain persons in government and the commentariat. The historians will be slower to attach any such glowing accolades to Australia. The whole saga is a sorry one, in which Australians as a whole do not shine. Here's something to read:

Australia might be doing the right thing now. Good. Well done. But let's not re-write history.

Advance Australia...fair???

We live in hope.

A new Press Release from the Permanent Court of Arbitration has arrived. It follows the agreement of 30 August, 2017 where boundaries were decided and it was planned to enter on a pathway to development of the resources.

Meetings since August have been held, seeking to reach agreement on an "Action Plan".  Methods of disclosure to the public of the terms of the agreement were also discussed and private stakeholders (oil companies) are being brought in to the discussions. Both Australia and Timor-Leste will need to secure the approval of their parliaments.

December this year will see further disclosures of the content of the meetings, with the Commission's report due in early 2018.

It seems that the Timorese leaders have worked with the Australian representatives and the Commission towards the terms of the agreement, and accept such terms. So there must be grounds for hope.

However, we must learn from history. Throughout the whole sorry saga of the Australian relationship with East Timor, official Australian accounts ignore or deny decades of Australian unfairness. What Australian governments say in regard to East Timor is at odds with what Australian governments do.  That is the pattern.

I hope it will be different when this matter is publicised, but I fear that similar tawdry interpretations will be made. That is, that in fighting for and securing its rights under international law against Australia, any Timorese success will be painted as an example of Australian "fairness" and "generosity".  We'll see.

But perhaps the headlines will read:

"Plucky Timor finally achieves justice"

"A new day for loyal neighbours"

"Australia recognises Timorese rights"

As I say, we live in hope.

The Petition to the House of Representatives which was to be presented in Parliament on Monday 27 November has now been postponed to a later date, yet to be decided. This has eventuated because of Prime Minister Turnbull's decision to cancel the parliament sitting for that week.


There have been a couple of related articles recently:


Agreement on Draft Treaty

More news from the Compulsory Conciliation. The "complete text of a draft treaty" has been agreed on by Timor-Leste and Australia concerning the matters signaled in the last Press Release:

·      delimitation of the maritime boundary

·      agreement on the legal status of the Greater Sunrise gas field

·      the establishment of a Special Regime for Greater Sunrise,

·      establishing pathways for

o   development of Greater Sunrise

o   sharing of the resulting revenue


No details have emerged concerning the actual nitty-gritty, e.g. maps. Each nation needs now to "pursue their domestic approval processes". Further confidential meetings will be held and the hope is that finalisation and signing will occur before the end of the year, or perhaps early in 2018.


There is much back-patting and joyous acclamation of the spirit in which Australia and Timor-Leste are approaching the matter of sharing the resources. Yes, always good to emphasise the positive. I note with satisfaction and relief, however, that the Commission will "facilitate" the work remaining on both the development of Greater Sunrise and on engagement with other stakeholders (i.e. the oil companies). Yes, indeedy.


The deed is done.  The cement is drying. It remains to be seen exactly what Australia and Timor-Leste have agreed to. As an Australian, I certainly hope that we have put our money where our mouth is - you know the drill - the fair go, loyalty, in there for the under-dog, shoulder-to-shoulder with the battlers.


We live in hope.


A word on the petition. It will be presented in the Federal Parliament at the end of October. Thanks to all!

PS. It's 42 years today (16 October) since the murders of the Balibó Five. No justice, international or otherwise, has been applied to them.

Before the Self Congratulation Begins

Aus Embassy.jpeg

I can just feel the Australian self congratulation coming. Spin spin spin - "we are an example in the region, look how we solved our dispute with Timor, such a good neighbour" .... etc etc etc.

Before, during and after all the handshakes and back slapping let's not forget for a single moment that Australia DID NOT want this UN Conciliation Process. They fought tooth and nail to get out of it.

On the 29th of August 2016 as Australia made its big push to get out of the process on jurisdictional grounds Mr Quinlan said "Australia's view is that there is no proper basis on which Timor-Leste is entitled to bring this claim."

In turn the UN Commission considered and then dismissed each one of Australia's arguments and on the 19th of September 2016 the compulsory Conciliation process began. Julie Bishop then went on the public record to emphasise that the outcome of the conciliation was not binding.

It is shameful that Timor-Leste has had to spend so much time, energy and money to corner Australia into engaging on this issue. 

And I don't doubt for a moment that Australia is still playing hardball in this final stretch in The Hague - working to maximise control, dollars and self interest.

Don't get me started on the longer history ....

Haggling in The Hague - Finish Line in Sight?

In the coming days it is likely we will get more information about the  "boundary breakthrough" announced on the 1st of September.

According to an article published last week by the Portuguese news agency LUSA, this week Timor-Leste, Australia and the UN Conciliation Commission are participating in meetings at The Hague  to finalise remaining details. 

Finish Line?.jpeg

It is significant that the parties are returning to the Netherlands - the location for the Opening Hearings on the 29th of August 2016. On that occasion Australia fought tooth and nail to get out of the process on the grounds of jurisdiction. The UN Commission dismissed all of its arguments.

Since then there have been many meetings - but not at The Hague, mostly in Singapore - a convenient location much closer to home. The return to The Hague is an indicator that the finish line is close.

Considering the location, and the Commission's practice of announcing any significant progress,  we hope an official update in the next days will include a map and some of the basics about the  revenue splits applying to the development of Greater Sunrise.

After the announcement of the breakthrough I wrote a response entitled Three Cheers for Change. Comparing what comes out of the Hague this time with the position declared by Australia back in August 2016 will show just how massive this change is.

But will it be enough for advocates who want the very best for East Timor? Who had hoped to see all of Greater Sunrise in Timorese waters and shared development consigned to history? 

We will soon know more ...

A lateral boundary based on the median line? Surely.

And if there is to be shared of development of Greater Sunrise Timor-Leste must get the lion's share.

Perhaps the Commission will also facilitate a proper assessment of the development options for Greater Sunrise.

For years Timor-Leste made a case for the gas to land on its shores if possible. Darwin undeniably reaped the benefits of the  Bayu Undan pipeline. The Northern Territory's Chief Ministers over the past decade have declared that the pipeline and onshore processing has provided huge boost to their economy.

Now it is time to see maximum benefits of any Greater Sunrise development going to Timor.

So - we have an interesting week ahead and the finish line in sight.

May this "Haggling in the Hague" produce the best possible outcome for our friends in East Timor still fighting with dignity after such a long, dark history of regrettable behaviour by successive Australian Governments.

Three Cheers for Change! A breakthrough announced.


Why I will not be raining on the parade.

After the big announcement of a ‘breakthrough’ in the maritime boundary conciliation I have been trying to get a sense of what it means. Has Timor-Leste got what it wanted? Should we be happy?

Commentators have been positive, skeptical and even disgusted.

I am very conscious of the fact that there is still much that is unknown and remember only too well the disappointment many of us felt following announcements back in 2005.

However, I am happy to give this press release a hearty three cheers.

Here are my three cheers for change!


My first cheer is because Australia and Timor-Leste have agreed on a permanent maritime boundary.

The release says there is alignment on “the central elements of a maritime boundary delimitation” in the Timor Sea.

The line will, at last, be drawn.

Chief Negotiator Xanana Gusmão said the process had resulted in achievement of Timor-Leste’s “dream of full sovereignty and to finally settle our maritime boundaries with Australia”.

PCA 10 XG.jpeg

This is massive.

At the beginning of this conciliation process Australia was still totally committed to the idea that maritime boundaries between the two countries were not to be discussed.

Not now and not for decades.

No. Way.

One year ago Minister for Foreign Affairs the Hon. Julie Bishop MP said plainly that she was disappointed with Timor-Leste’s actions and emphasized the non-binding nature of the conciliation.

We should not underestimate the magnitude of this monumental change in position. Australia has finally relinquished its long-standing mantra of ‘no negotiation in the Timor Sea”. DFAT has been clinging to this dogma for decades with a ‘white knuckle’ grip.

Also, although it is not said in the release, my view is that this boundary delimitation is based on the median line. For the Timorese to not get this would surely have been a ‘deal breaker’.

Professor Donald Rothwell from the Australian National University, interviewed on ABCs Radio National after the Press Release has made the same assumption:

 “… presumably Timor has gained on its long held view that the boundary should be based on what’s called the median line between the East Timorese coast and the Australian continent, and that would shift the arrangements that had previously existed much further south and that would give Timor sovereignty over the seabed and water column to a much greater extent than what it has at the moment.”

Again, if this is the case, it is a massive change.

In March this year Australia’s Department of Foreign Affairs confirmed that it still favored ‘natural prolongation’. So less than six months ago and as the conciliation was in process, they were still resisting the notion of the median line and sticking to an unsustainable position of ‘continental shelf’ contrary to international law.

So this is my first big cheer! – at last, and for the very first time a BOUNDARY between our two countries in the Timor Sea.

Next …


The release says the agreement“addresses the legal status of the Greater Sunrise gas field, the establishment of a Special Regime for Greater Sunrise, a pathway to the development of the resource, and the sharing of the resulting revenue.”

At the word “sharing” many of our hearts sunk. Surely this means a return to the dark old days?

Well there is a lot we don’t know.

Did the eastern lateral take in all of Greater Sunrise? And if so, why share anything? What are the percentages? Did Timor get a better deal than they had before?

An agreement on the eastern lateral and an approach to Greater Sunrise was always going to be one of the most difficult parts to the conciliation. A simple unadjusted median line bisects the field at the current edge of the JDPA.

Timor argued the line short move east after reviewing ‘relevant circumstances’ and applying a ‘disproportionality test’. This included applying weightings given to some of the small Indonesian islands off the eastern tip of Timor. Without Indonesia as a party to the negotiation this was going to be difficult.

And then there are existing contracts with companies operating in the Timor Sea that the Timorese would have been seeking to deal with properly.

My guess is that Timor has got a much better deal than the 50/50 it previously had on about 80% of the field and that it now has much more control than before.

But that is speculation.

What I am cheering for is certainty, economic certainty.

With its “pathway to the development” of the Greater Sunrise gas field comes a measure of economic certainty for East Timor. It seems from the release that the development of Greater Sunrise is doable, and commentary from Woodside and Conoco has welcomed the news.

The income from Greater Sunrise gas field can provide for a much less bumpy path in the next few decades as East Timor continues work to diversify its economy. A successful partnership to its development will send a confidence-boosting message to other potential partners and investors.

So that is my second cheer - for CERTAINTY

Cheer 3: UNCLOS

This was the first time ever a United Nations Conciliation Commission instituted under the Convention on the Law of the Sea was run.

The provision for this process was placed in the Convention to help countries like Timor and Australia who were stuck, get unstuck.

I’m sure it weighed on the commissioners that this first process would set a huge precedent. Would this particular dispute resolution mechanism work or would it fail?

Well, it seems to have worked.

Timor’s Chief Negotiator Xanana Gusmão expressed appreciation for the efforts of the Commission: “I thank the Commission for its resolve and skill in bringing the Parties together, through a long and at times difficult process…”

Dr. José Ramos-Horta also recognised the Commissioners.

PCA 10 JRH.jpeg

This was the mechanism that compelled a very reluctant Australia to engage in order to resolve the dispute between the two countries. The lengths that East Timor had to go to are beyond the pale – but the process has worked.

So that is my third cheer – UNCLOS!

As for next steps, I think we need to let our Government know that we are watching all of this very closely and continue to call for a respectful and fair outcome as the details are finalised in the weeks ahead.

But for now, three cheers from me.


Dishonourable Delay - Timor still fighting for what is theirs.

Today, the 30th of August, is a bittersweet day for the Timorese. It is the anniversary of the Popular Consultation, the UN sponsored referendum held in 1999 that finally gave the Timorese people a chance to vote for their freedom. And vote they did, overwhelmingly for self determination. This courageous act unleashed a terrible tirade of violence that saw over 1,400 civilians killed, some 200,000 Timorese forced into West Timor by Indonesian troops and paramilitary gangs, and the destruction of the capital Dili. 

Ballot Paper from 30th August 1999. 78.5% voted to reject, courageously voting for independence

Ballot Paper from 30th August 1999. 78.5% voted to reject, courageously voting for independence


In October 1999 after spending seven years in an Indonesian prison Xanana Gusmão, the Commander in Chief of the resistance  flew home to his beloved people now once again on a path to freedom.

And where is Xanana today? Surely he is  amongst his people on this important day of commemoration? 


Instead he is thousands of kilometres away in Europe battling with Australia, to finally establish a maritime border that gives the Timorese people what is their right under International Law.

What an appalling state of affairs. 

Still fighting for sovereignty, The Hague 29 August 2016

Still fighting for sovereignty, The Hague 29 August 2016

While we can only speculate on what is happening in the secret United Nations Conciliation meetings now underway, one fact is beyond speculation - it is time for this sorry story of Australian greed and arrogance to come to an end. To finish this without delay with a final chapter that tells a story that shows integrity and demonstrates friendship and respect.

I have written before about the opportunity that now exists for Australia to set an example in the Timor Sea.

The President of East Timor in a televised address to the nation on the 21st of August made plain the commitment of the State:

"Because this negotiation is intimately related to the sovereignty of Timor-Leste, as one of our national interests, as the Head of State, I want to express my full support to the government of Timor-Leste, through our brother Xanana Gusmao, who is leading and will continue to lead the negotiation with a view to achieving a result that is fair to us, in accordance with international law."

He went on to say:

Lu Olo 21 August.jpeg

That 'one day' is long overdue. 

If you are Australian please reach out to your local representative to let them know you want this fixed now. We have made it very easy to do. Click here.

The fact that today, of all days, Xanana is on the other side of the globe continuing the struggle for Timor's sovereignty so that the Timorese people can finally enjoy their rights under international law is an indictment on Australia's poor treatment of its near neighbour.


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.


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 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:

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.