Do as I say, not as I do

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.

75th Anniversary of the Bombing of Dili

It's the 75th anniversary of the bombing of Dili on February 19. Yes, I know it's the 75th anniversary of the bombing of Darwin too, but it's the bombing of Dili on the same day which always gets second billing, if remembered at all.

                           Australian soldiers and their loyal companions:                  Tom Nisbett, Evaristo, Rufino Alves Correia, Geoff Laidlaw

                           Australian soldiers and their loyal companions:
                 Tom Nisbett, Evaristo, Rufino Alves Correia, Geoff Laidlaw

Most Australians thought that Japan was going to invade Australia in 1942, and there are very many Australians who still believe it.  But actually, the Japanese did not intend to invade us at all. What they wanted to do was prevent Darwin being used by the Allies against the Japanese plans for expansion in South-East Asia.

Let us remember, that whatever the Japanese intention, the fact is that Australia was not invaded. The country which was invaded by the Japanese was Portuguese Timor. And one of the reasons they came was because Australia had invaded Timor two months earlier.

These invasions of Timor resulted in the deaths of at least 40,000 Timorese people, all civilians. (See James Dunn, East Timor: A Rough Passage to Independence, p. 22) Yet strangely, the invasions are hardly noticed. Instead we get news and commentaries and "what ifs" about the non-existent invasion of Australia.

                                                                  Australia wasn't invaded in World War II.  Timor was.  These are the facts.

The Australians were enormously successful as a result of the support of the Timorese throughout 1942. The Australian government recalled its soldiers at the beginning of 1943, and upon withdrawing, their courageous Timorese friends were left behind. The toll exacted on the Timorese for choosing to support the Australians was terrible indeed. Apart from direct killings and the burning of crops, livestock and villages by the Japanese, the Allied bombing raids on the Japanese positions in Timor lasted until 1945, which meant that the Timorese people endured four years of death and destruction.  Not Australians, Timorese.

No other nation on the face of the earth has lost over 40,000 civilians as a direct result of protecting Australian soldiers.

The very least Australia could do for these loyal war-time friends of ours is to agree on a border between our two nations.

And the very least we Australians can do is remember their courage and friendship, and work towards a just and permanent outcome on the border issue.

Something immediate you could do is to sign both of these petitions:

Petition to the Foreign Minister

Petition to the House of Representatives
Print this one and get people to sign. Instructions on the paper.

Many thanks everyone.

Sister Susan Connelly

 

 

 

 

Petition for Parliament

 
 

The NSW Timor Sea Justice Forum has initiated a formal paper petition to the House of Representatives.

A group has formed as the NSW Petition Group for organisation purposes. Thanks to the 12 people who agreed to do this. A good, strong, workable group.

It is intended to be printed on one sheet, back and front. The back shows a map and describes the issue as simply as possible. Download it here.

The petition as it stands can’t be signed online, but must be printed and then signed, with the paper itself being returned/posted to me. 

However, it will go online in June on the Petitions Committee website, but can only be there for four weeks. 

The timing is such that the online signatures can then be combined with the paper ones and will be presented together. That was the advice I received.

There will be plenty of notice about this.

As a paper petition, this is designed to pick up some of those who do not, will not, or cannot access online petitions. 

There is no age limit on who can sign, and addresses are not required. 

You are encouraged to send it out widely. 

The Parliamentary Petitions Committee has given advice about this petition.  Here is the link to the Committee if you would like more information.

http://www.aph.gov.au/Parliamentary_Business/Committees/House/Petitions

You can also sign the statement to the Foreign Minister on the Timor Sea Justice Campaign website in Melbourne too, as well as this formal Petition to the House.

http://www.timorseajustice.com/

An update from the Conciliation Commission

This morning in my inbox was another Joint Statement from the Governments of Timor-Leste and Australia and the Permanent Court of Arbitration [on behalf of the Conciliation Commission.]

It does not contain the big news of the first Joint Statement which came out on the 9th of January and told us Australia would negotiate maritime boundaries with Timor-Leste and CMATS would be terminated.

What is new in this latest statement is the confirmation that CMATS will be no more as of the 10th of April 2017 and that on the 20th of January Timor-Leste wrote to withdraw two arbitration cases it had initiated again Australia under the Timor Sea Treaty. One was the case referred to in the media as the 'espionage case' and the other a less well known case about pipeline jurisdiction. 

It seems that the withdrawal of these cases, like Australia's acceptance of the CMATS termination including the 'revival' clauses, is a 'clearing of the decks' for the border negotiation.

I hope so. 

The new statement, as seen in the quote above, strengthens the message that the parties are working towards concluding an agreement by the end of the conciliation period in September.

For that to happen Australia is going to have to abandon its outdated continental shelf claim up to the Timor trough and allow the discussion to be guided by international case law - which means starting with with the median line. As set out in our Myth Busting article the median line has been the basis of all Australia's boundaries with a maritime neighbours bar one negotiated in 1972.

It should be the starting point in the Timor Sea.

The Australian Government's acceptance of this principle is what will best demonstrate good faith and make possible an agreement by September. 

In the meantime we continue to advocate for the establishment of fair and permanent boundaries between Timor-Leste and Australia.

Myth Busting No 1 - Australia's Boundaries with neighbours and the Continental Shelf

The Australian newspaper, a News Corp publication, produced an unexpectedly positive editorial about the announcement on Monday of the Australian and Timor-Leste Government's intention to negotiate maritime boundaries. It also contained statements that need to be challenged. One promoted, perhaps unwittingly, the myth that Australia's boundaries with its neighbours are based on "the continental shelf principle". 

The editorial says:

"Australia argues that its maritime boundary should be drawn along its continental shelf, as it has always been. Timor maintains it should be an equidistant line between the two countries, a boundary that would give Dili most of the revenue flowing from the Timor Sea. Contemporary international law supports East Timor’s claim of equidistance. But the argument for it is complicated by consideration of our boundaries with Indonesia as well as Australia’s contention that the Timor Trough extending from close to the coastline of East Timor divides the two continental shelves. For decades Australia has based its maritime borders on the continental shelf principle endorsed by UNCLOS."

There are several parts of this quote that could be questioned but let's focus on the very last part which may lead people to incorrectly believe that Australia's borders with neighbours are based on "the continental shelf principle".

The fact is that almost all of Australia's maritime boundary delimitations with its neighbours are based on equidistance.  All of them in fact, if we are talking about the last four decades.

Keeping it simple, Australia has maritime boundaries with five of its seven maritime neighbours. They are New Zealand, Solomon Islands, France, Papua New Guinea and Indonesia. Boundaries are unresolved with Timor-Leste and Antarctica.

Australia's pre-eminent expert on international maritime delimitation, Professor Don Rothwell, presented a survey of the boundary treaty arrangements with all of our neighbours at a Monash University symposium last year. You can see a video of his presentation on the Monash webpage that recounts the event along with the slides used.

The table above simplifies what he says in the survey. Professor Rothwell nuanced his comments for each one so PNG was "predominantly equidistant", the Solomon Islands boundary "relies on principles of equidistance", the boundary with New Caledonia uses "a modified equidistant line" and the Indonesian arrangement in the Arafura Sea is "based on an equidistance line provision". He didn't specify with New Zealand but we know that it is based on equidistance. Alexander Downer confirmed this in his media release announcing the boundary delimitation in 2004 when he said, "The Treaty confirms the median line boundary between the overlapping EEZs (Exclusive Economic Zones)."

The only boundary between neighbours based on "the continental shelf" that Professor Rothwell refers to is the boundary with Indonesia in the Timor Sea.

It is true that the continental shelf is an important principle for maritime entitlements, particularly when there are no overlapping claims, but the facts are clear:

Except for one exceptional case (Indonesia), all of Australia's maritime boundaries with neighbours have been negotiated by principles of equidistance.

The negotiation with Timor-Leste should be based on equidistance, which even the conservative Australian newspaper recognises as "supported by contemporary international law."

 

CMATS going, TST for now, Maritime Boundaries coming ....

CMATS is the treaty known as  "Certain Maritime Arrangements in the Timor Sea" [2006], and the TST is the "Timor Sea Treaty" [2002].

Today a joint statement was released by the Government of Australia, the Government of Timor-Leste and the Permanent Court of Arbitration on behalf of the UN Conciliation Commission.

This is the first joint statement to come out of the conciliation process so far and is a significant one. Available on the Australian Foreign Minister website here.

There is some careful language around what presents as a commitment by the current Government of Australia to proceed with negotiations of a permanent maritime boundary with Timor-Leste.

So there are qualifiers of time – “for the further conduct of the conciliation process” which is expected to end in September 2017, context – “under the auspices of the Commission”, and modality – part of a secret agreed “integrated package of measures”.

Still – this is something new and important.

Also significant is the announcement of the Timorese Government’s intention to terminate CMATS and more particularly Australia’s intention to accept this without contesting. An important point is their acceptance that three months from the initiation of the termination that CMATS is really dead.

The CMATS treaty had extraordinary provisions in its Article 12 that could in effect bring it to life again even after its termination. So called “Zombie” or “Phoenix” clauses. But the Australian Government has in this joint statement said that they have agreed that “no provision of the Treaty will survive termination. All provisions of the treaty will cease to have effect three months after the delivery of Timor-Leste’s notification.”

The Timor Sea Treaty will remain in place after the termination to manage current commercial activities in the Timor Sea.

So it seems the decks are being cleared for maritime boundary negotiations to commence in earnest.

How far will we get by September? Will it all grind to a halt once the Commission process is over? Is there any indication from the Government of Australia that they will respect international law jurisprudence and the 3-step method as the basis for proceeding?

Lots of questions – but for now what seems like a good day for Timor-Leste.

28th November 1975

Today marks the 41st anniversary of Timor's independence proclamation. On this day in 1975 what was known as Portuguese Timor was declared to be the Democratic Republic of Timor-Leste. 

 
 

After 500 years of colonisation the hopes of the Timorese ran high. Sovereignty, liberty, dignity, self determination - at last.

Nine days later, with an Australian 'green light' Indonesia invaded and a brutal 24 year occupation began. 

Each respective Australian Government over those 24 years knew exactly what was going on, the atrocities taking place on our doorstep, a single hour's flight north of Darwin. 

Fear and greed and expediency rendered nearly all of our so called leaders silent. 

There was oil in the Timor-Sea.

It belonged to the Democratic Republic of Timor-Leste:

The new nation proclaimed on this day 41 years ago by the diminutive figure of First President Francisco Xavier Amaral - and Australia wanted it. 

Our leaders thought it would be easier to get it dealing with Indonesia regardless of the cost to the Timorese people.

So on this day - of all days - after our shameful role in this history of neglect and deals, lets call on our Government to do the right thing. 

Do the border, do it fair, do it now.

Aussies back the border

An independent poll has confirmed that most Australians want the Government to establish a permanent maritime boundary in the Timor Sea in accordance with current international law, even if that delivers East Timor a substantial share of the oil and gas in the Timor Sea.

Think tank The Australia Institute commissioned a poll conducted by ReachTEL  on the evening of the 30th of August 2016 covering 10,271 residents  across Australia.

The question posed was this:

Now thinking about Australia's international relationships. There is currently no permanent maritime boundary between Australia and East Timor. Drawing a boundary in accordance with current international law is likely to deliver East Timor a substantial share of the oil and gas located in the Timor Sea. 

Should Australia try to establish a permanent maritime boundary in accordance with current international law?

In response 56.5% said yes, only 17% said no and 26.6% responded 'don't know'.

This is a greatly encouraging result. It is no surprise that for many the issue is not something they feel they know enough about to say yes or know. These are people that we need to reach with good information. If we remove the 'don't know ' responders and consider those who were ready to offer a yes or no - then 76.9% are responding in the affirmative. Bravo!

 
 

Ben Oquist, Executive Director from The Australia Institute said: 

“Fairness is a nationally defining trait for Australians. This polling suggests that most people want Timor-Leste to have a fair go with regards to resources in the Timor Sea. This shows there is public support for negotiations to mark the maritime boundaries between our two countries, as currently there are none.

“It would be terrible if Australia’s behaviour in this affair has the potential to undo the good will and strong friendship forged through our support of East Timorese independence. The Government should heed the public mood on this issue and enter future negotiations with a new spirit of amity and respect for international law.” 

The Australia Institute produced a media release on the 14th of November and  the ReachTEL data can be downloaded.

AAP published a news piece which is titled New poll calls for fairness for East Timor

Other analysis done by us here at TIMFO looked just at the yes and no responders and found that of this group 80.4% of women voted yes, along with 84.1% of older Australians [65+] whom I think we can deduce have more memory of the history.

 
 

Also considering the same group, political affiliation did not create huge differences with 72.7% of L/NP, 82.6% of Labor and 86.1% of Greens responding yes.

 
 

Finally of the Yes or No group the ACT [81.8%] and Queensland [80%] responded most positively.

 
 

Creating Certainty Boosts Business

 
 

The Australian Timor-Leste Business Council has issued a press release following the premiere screening of the movie Time to Draw the Line at Parliament House in Canberra earlier this month. In the release the President of the Council, Mr. Denis Fernandez says:

 “The film is yet another timely reminder in how patient our Timorese friends have been with the Australian Government. The Timorese are continuing to struggle for state sovereignty because the Australian Government will not work with the Timorese to establish the maritime boundary under The United Nations Convention on Law of the Sea”. 

ATLBC President Mr. Denis Fernandez & Timor-Leste Ambassador to Australia H.E. Abel Guterres

ATLBC President Mr. Denis Fernandez & Timor-Leste Ambassador to Australia H.E. Abel Guterres

The Business Council was established in 2002 and is the peak, non-profit organisation established to promote stronger business relations between Australia and Timor-Leste. It is a member based, national association with chapters in the Australian Captial Territory, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia.

The Council has consistently put the position that finalising the maritime boundary would be good for business and in the recent press release Mr. Fernandez and put this view: 

"The ATLBC believes the certainty provided by the delimiting of the maritime boundary will be good for business in both Timor-Leste and Australia." 

Here at TIMFO we have put the position that it is in Australia's national interest to establish a maritime boundary with its near neighbour for at least four reasons:

  1. It would complete our maritime border work
  2. It would be good for Australian business
  3. It would enhance our international reputation
  4. It is good for regional security

In these months ahead when the Conciliation Commission is trying to help Australia and East Timor come to an agreement about the border it is a good time to remind our politicians that we want to see a border that is fair and settled as soon as possible because we know that certainty boosts business.

In the mean time, as the ATLBC will tell you, foreign investors are already taking advantage of 'first mover' benefits within Timor and opportunities await.

For more on the ATLBC visit their website.

 

Successful Sydney Screening

The new documentary "Time to Draw the Line" was screened last night at the Mary MacKillop Centre in North Sydney. The film was well received by a near capacity crowd who gathered in the Isabel Menton Theatre for the NSW Timor Sea Justice Forum's 'Special Screening.'

The film, which runs about an hour, is a great introduction to the issue of the maritime boundary between Australia and East Timor. There is no boundary or border, and the Timorese want one. 

Featuring mostly Australian voices on the issue, "Time to Draw the Line" does a fine job of presenting the current dispute in the wider context of the relationship between Australia and Timor-Leste going back to the second world war right through until the present day. To get a taste have a look at the short trailer. There is a Press Release about the film here.

People began arriving up to an hour before the screening which began soon after 6pm. Many old friends and supporters reconnected over tea and coffee in the theatre foyer along with some new faces and families.

I opened the proceedings with a short welcome on behalf of the forum and reminded all to keep up to date by checking into TIMFO regularly. Then Mandy King, who along with Fabio Cavadini are the film makers 'Frontyard Films', said a few words about this project, one that  is obviously very dear to their hearts. Mandy and Fabio have had a long relationship with East Timor and were involved in producing two significant films about the situation there in the late 80's early 90's, a time when so little was available.

Mandy expressed her hope that the film could be a tool to raise this issue in the consciousness of Australian people, most of who were unaware of this "unfinished business in the Timor Sea". She acknowledged the support of the Government of Timor-Leste in funding the project. Meanwhile, Fabio back in the projection booth, made sure all was ready.

Associate Producer Janelle Saffin then spoke briefly before we began the film. Janelle passed on the greetings of her fellow Associate Producer Ines de Almeida, the initiator of the film, who had returned to Dili following the premiere screening in Parliament House Canberra last week.

Janelle pointed out that the boundary was only a matter of time since the position to 'not negotiate' was no longer a bipartisan position in Canberra. She said that the news coming out of the Conciliation Commission recently should add to the momentum for a change in the position of the Coalition Government. 

A long and loud round of applause from the crowd as the credits rolled and then a quick wrap up to end the night. I mentioned the 'people power' in the room, our ability to keep up the pressure, the effectiveness of raising the issue with local members of parliament and the way people could  stay in the loop using the web and social media. 

As people left many picked up their free copy of the Policy Paper produced by the Maritime Boundary Office of the Government of Timor-Leste - a very readable and straight forward presentation of what the Timorese are seeking and why. This is available for download on our Resources page.

Time to Draw the Line Movie Premiere

 
 

Last night in Canberra was the premiere screening of the new documentary "Time to Draw the Line".

Close to 200 people attended a reception and premiere screening at Parliament House in Canberra with many then gathering after at East Timor's Embassy. I think this film is going to be a big help in explaining the Timor Sea story to people and why it is important that Australia and East Timor resolve the maritime boundary issue now.

Executive producers, Ines Almeida and Janelle Saffin and film makers Mandy King and Fabio Cavadini have managed to tell the story of Australia and Timor's relationship in a way that shares the highs and lows since World War II right up to the present day. The movie is fast paced using historical footage and current commentary from many Australian voices. I was pleased to be able to add to those voices

Ines Almeida, Janelle Saffin and Michael Stone at the reception

Ines Almeida, Janelle Saffin and Michael Stone at the reception

Janelle Saffin, former Federal MP for Page, was MC for the night and explained some of the background to the film. Fellow producer, Ines de Almeida, was the person who came up with the idea that a film, focussed on the Australian perspective, was needed to help bring together the puzzle pieces of the story of Timor's claim for justice in the Timor Sea.

Film makers Fabio Cavadini and Mandy King

Film makers Fabio Cavadini and Mandy King

Janelle Saffin said that both of them knew from the beginning that the film makers had to be Mandy King and Fabio Cavadini [Frontyard Films]. Mandy and Fabio are counted among the few filmmakers who produced material on Timor in the late 1980's and 1990's with Mandy co-producing the AFI nominated film  "The Shadow over Timor" and Fabio shooting and co-directing the feature length documentary, "Buried Alive - The Story of East Timor."

Mandy King said that the border issue needs to be understood more widely and thanked the Government of Timor-Letse for their funding assistance that enabled them to get the project to the stage of its first screening.

The Hon. Luke Gosling MP, Member for Solomon.  

The Hon. Luke Gosling MP, Member for Solomon.

 

The newly elected Member for Solomon, the Hon. Luke Gosling MP was the Parliamentary host for the event and as a spoke of his long friendship with the people of Timor-Leste and his pride in the Labor policy to negotiate the maritime boundary.

Mr. Gosling talked about his connection with Timor through his involvement with the Australian Defence Force and friendship with the Kenneally family who were well represented on the night. The late Paddy Kenneally features in the film. Paddy was a World War II Timor veteran who constantly called on Australia to deal fairly with Timor and to recognise the 'debt of honour' that he and other veterans felt Australia owed to the Timorese people. Paddy's wife Nora and children were special guests at the screening. 

The film honours the commitment of these veterans who wanted to honour East Timor by treating them fairly.

Liberal MP Michael Sukkar attended after being requested by one of his constituents, Lindy Yeates, one of the speakers in the film and one of the artists of the Mind The Gap Art Exhibition. The Hon. Warren Snowdon MP attended taking the opportunity to connect with old friends.

Many others came including commentators such as Fr. Frank Brennan, members of the Clergy such as Bishop Pat Power and Bishop Hilton Deakin, Ex Service personnel such as Michael Stone and Chris Perrin, Timorese community members and students, the list goes on ...

"Time to Draw the Line" was well received with long and loud applause from the audience and acclamation for the film makers and executive producers.

Radford College students

Radford College students

It was exciting that the film and the audience included the participation of young Australians. Students from Canberra's Radford College, which has a Timor-Leste visit program coordinated by Father Richard Browning, assisted with the logistics at the premiere. Students from the Australian National University who have taken an interest in the issue also came to learn more. 

H.E. Joao Goncalves

H.E. Joao Goncalves

Before MC Janelle Saffin closed the night, Timor-Leste's former Minister for Economic Development and currently lead in the Timor, Indonesia, Australia Growth Triangle initiative, Mr. Joao Gonclaves, expressed his hope that the Government of Australia would move quickly to solve this lingering issue, where Timor-Leste is only seeking its rights under international law.

 

Now looking forward to a special screening to take place next Monday in North Sydney. More about that here.

Nora Kenneally [left], Gerald Kenneally, Frank Brennan SJ, Joan Westblade LCM, Inacia Mafalda O. Carm.

Nora Kenneally [left], Gerald Kenneally, Frank Brennan SJ, Joan Westblade LCM, Inacia Mafalda O. Carm.

Give us a Border

  Australia's Maritime Borders - not complete because of the remaining 1.8% between us and East Timor. Map presented by Timor-Leste at Conciliation Commission Hearing 29/8/16

 

Australia's Maritime Borders - not complete because of the remaining 1.8% between us and East Timor. Map presented by Timor-Leste at Conciliation Commission Hearing 29/8/16

If there is one problem over which the Australian government has complete control, it is the matter of the non-existent border between Australia and Timor-Leste.

It is true that the United Nations Conciliation Commission has ruled that it does indeed have the jurisdiction to consider the case by Timor-Leste against Australia. Timor's aim is that an internationally recognised maritime boundary be established between itself and Australia in the Timor Sea.  However, while a report is expected in twelve months, the two nations could begin discussions in the intervening period and just get on with it.

The Australian government has said it accepts the decision that the conciliation should go ahead, but reminds us that any result is not binding. No, it's not binding; meaning that it is possible that if decisions were not to Australia's liking, then it could just walk away. My ears are reddening at the thought that my nation considers it appropriate to flog this horse any further.

There is a story around that Australia has been "generous" to its neighbour as though such "generosity" is a government initiative. It is not. It is not a generous act to take two billion dollars in tax revenue from a disputed area, as Australia has done. The Laminaria-Corallina fields are now nearing depletion, and since September 1999 Australia has received, not just the lion's share, but the totality of the revenue available. Timor-Leste received nothing. During the same period, Australia has spent $1.2 billion in aid to the Timorese. A little arithmetic shows how well we have done.[1] (Actually, neither nation should have received anything from that area; the revenue should have been put into trust until it became clear just where the border should be drawn.) More claims of generosity concern an area where Timor gets 90% of the revenue and Australia 10%. What is usually omitted is that 100% of the area lies on Timor's side of half-way. So in effect, Timor has been generous to Australia, not vice-versa.

What Timor reckons it would get with the application of international law. The border expected with Australia is the green line.

What Timor reckons it would get with the application of international law. The border expected with Australia is the green line.

Australian governments of both complexions have been derelict towards Timor, because of a tunnel-visioned interpretation of "national interest" which holds our nation in thrall to larger powers. In contrast, the work of Australian civil society involving hundreds of thousands of ordinary Australians over decades in supporting the Timorese people has been consistent, effective and magnificent.

As Australians know, the Timorese are not asking for charity, in fact, they have never done that. What they require is a border, properly established under international law and recognised by the neighbours. Frankly, Australians have the right to demand the same, because 1.8% of the Australian border does not yet exist, and the missing portion is directly opposite the coastline of Timor-Leste.

Our nation now has the opportunity to take one last step in the journey towards becoming a true neighbour to Timor-Leste. We could accept that the modern, internationally acceptable way of settling this issue is to establish a border based on the median line, as we have done with other neighbours such as New Zealand. We could read some history and realise what an astute, patient and even stubborn people the Timorese are. We could read the current Labor Party policy, which is to undertake talks with the Timorese immediately, with or without a conciliation process. In that context, we could wonder when the next election will be, and ask ourselves what bludgeoning this dead horse does to our international standing. We could ask the question that if Australia expects China to abide by United Nations decisions in the South China Sea, why would we hint at the "non-binding" aspect of a United Nations process in which we have agreed to take part.

We could also think about that one image with which we Australians like to describe ourselves: fairness.

[1] La'o Hamutuk, "How much oil money has Australia already stolen from Timor-Leste?: A look at Laminaria-Corallina:  Updated 4 May 2016, accessed 17 September 2016. http://www.laohamutuk.org/Oil/Boundary/laminaria_revenues.htm; Joint Standing Committee on Foreign Affairs, Defence and Trade Foreign Affairs Sub-Committee, Inquiry into Australia's Relations with Timor-Leste Submission No 22, 2013: 4, accessed 17 September 2016, http://www.aph.gov.au/parliamentary_Business/Committees/House_of_Representatives_Committees?url=jfadt/timor_leste_2013/subs.htm

Green Light. Commission Proceeds.

 
 

The Conciliation Commission issued its Decision on Competence on the 19th of September and it was made public today. The Permanent Court of Arbitration put out a Press Release announcing that "In its Decision, the Commission held that it was competent to continue with the conciliation process.”

 
 

This means the challenges of Australia to the commissions existence have been overcome and the proceedings concerning the establishment of a maritime boundary between Australia and East Timor will continue. 

The Government of Timor-Leste responded with a media release saying: 

 
 

Now one question for me is "how will the Australian Government respond?"

In their challenges Australia made it clear that they do not want to be a part of this process. Julie Bishop herself was tweeting to remind everyonethat the outcome was not binding.

The Decision of the Commission has something to say about the engagement of the parties:

 
 

So if Australia is committed to engage in 'good faith' does that mean that they will take on board the suggestion of the Commission in paragraph 108 and participate with an acceptance of the process, willingness to seek agreement and with an intention to give serious consideration to the recommendations of the commission?

We have not yet seen the official response from the Australian Government , but if it involves reiteration of the 'non binding outcome of the process' it would not be a sign of 'good faith' and would  fly in the face of Australia's loud endorsement of the United Nations Convention on the Law of the Sea as the dispute resolution solution for the South China Sea. After all this Conciliation Commission is set up under UNCLOS to help solve disputes and [Decision Paragraph 42] "provides for compulsory conciliation where a State elects to exclude sea boundary delimitation from arbitral or judicial settlement.” This is the exclusion Australia made in a targeted way two months prior to the independence of Timor-Leste.

It's no wonder that Senator Penny Wong has jumped in to say:

 
 

Let's get on with it. I'm for that. 

But doesn't the proceedings mean we all have to wait 12 months for the report of the Commission due on the 19th of September 2017?

No. 

UNCLOS Annex V notes that the Commission’s 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.” 

So agreements can be made in the process and will be encouraged.

I think in the coming weeks and months we need to make it clear to the Australian Government that we want them to stop avoiding this issue and get on with it. There are activities coming around the country to help you do that. One of the best ways in the 'old school' method of going to talk to your local federal member to ask them about their position on a maritime border in the Timor Sea.

Let's get on with it.

Stop or Go? When?

 
 

So now what?

Is the Conciliation Commission going to go ahead? 

Stop or go?

Well I don't really know for sure. But here's some reasoned speculation!

Since the commission has been releasing quite a lot of information to tell us what is going on, we can assume that when they have made their decision on Australia's challenge  they will issue a Press Release through the Permanent Court of Arbitration. What their release said on the 22nd of August was that: "After having heard the Parties on the objections raised by Australia, the Commission will decide whether to rule on Australia’s objections as a preliminary matter or to continue with the conciliation proceedings and defer the question of competence for later decision."

So the way I read that is they will now decide if the proceedings STOP or GO ahead, and go means they will 'shelve' the question of competence for the time being. How that works is for another post that needs some research first!

When?

OK - so how long is this decision to stop or go going to take? Well we know from the PCA release on the 31st of August that "on 12 and 25 August 2016, the Parties provided the Commission with written submissions on the question of the Commission’s competence." Added to this was the two and a half days hearing that dealt with this matter after the initial opening statements.

That means there must be a lot to consider. Could it take months?

That would be unlikely since the Commission, constituted on the 25th of June this year, have only 12 months to write their report. It is  due on the 25th of June 2017, unless there is agreement between the parties to extend. If it does go ahead wouldn't they want to get stuck into the next step of consultations before the Christmas break? 

So...

Here's my reasoned speculation: we should know something in 2 or 3 weeks, maybe a month. I don't think it would be longer than that. Some of our Timor Sea Forum members with a legal background think they would need at least couple of weeks to consider such an important matter but at the same time the Commission would not want to let it drag on.

 
 

The decision on the competence of the commission to hear the parties, a yes or a no, should not be considered as a decision on the position of East Timor and its case to establish a maritime boundary with Australia. It will be a technical decision based  interpretation of Annex V of UNCLOS and Article 298. 

Whatever that decision is, and we may well know in a couple of weeks, the campaign to establish a maritime boundary will not be stopping, certainly not for all of the advocates here in Australia and for the Timorese people. The dispute is unresolved and the injustice in the Timor Sea will be getting more and more attention.

Canberra is no longer as one on the issue of the Timor Sea. The current policy of the Turnbull Government to leave the dispute unresolved will not stand the test of time and cannot properly serve Australia's national interest.

 
 

Tick Tick Tick

A few diary entries as we wait. Latest first and then going back in time.

 
 

Thursday 1 September 2016

The hearing at the Hague is done. Only the first half day was open, the next two and a half, where the Australian side made their objections and challenges to the 'competence of the commission' were behind closed doors.

Considering some of the tone of the Australian opening statement I think we can assume that the Australian team played hardball in the following meetings. There were hints, even in the public opening statement by Australia, of what the old treaty negotiations may have been like. Some of the same themes were there: you are going broke so don't rock the boat, if we did a border we would be going hard for 'Continental Shelf'  and shut up - its a good deal.

And there was a glimpse of the patronising tone: writing off Timor's request to finalise its sovereignty and establish a maritime boundary as a case of ... you didn't get the pipeline so now you have changed you mind. Plus the insistence that their should be no emotion. Good Lord, after 24 years of fighting for liberation and 17 years of trying to rebuild their nation from the ashes - now they are still fighting to get their border - there should be some emotion.

And from Australia, there should be a little respect.

What will the Commission decide? Well of course I trust it will proceed. Australia is already beginning to stress that if it does go ahead we all should remember it is 'non-binding'.

True, but if Australia is indicating at this point that it will flat out ignore a report issued by the United Nations next year or participate in this process in a recalcitrant fashion, then we might as well stop talking about the South China Sea and International Law.

How we can be pitching for a position on the United Nations Humans Rights Council in 2018-2020 and poking a stick in the eye of UNCLOS? I don't think that will go down well.

If Australia's challenge to the competence of the commission is successful there is still an unresolved dispute. It will not go away. And changes in the Timor Sea are coming. Ignoring, obfuscating, belittling, ducking and weaving - none are a suitable response to an issue that will ramp up and further damage our relationship with East Timor and our international reputation as a good global citizen.

Senator Penny Wong gets this and wrote about it in the Lowy Interpreter today.

 
 

Anyway that is all for this morning after the close of the hearing on competency in the Hague. Not sure how many days we will have to wait, but since the Commission's work has been somewhat transparent to date, we can assume there will be a press release coming.

I noticed this morning that all the materials from the opening statements, including the transcript, the presentation slides of both parties and the video are available on this page at the PCA website.

Wednesday 31 August 2016

Tick tick tick ... as Australia tries to escape from the conciliation process set up under the United Nations Convention on the Law of the Sea. 

Xanana Gusmao: "Australia used to tell others to respect international law, they must now show us that they also abide by international law"

My two cents worth: Both sides accept there is a dispute. There is a dispute resolution mechanism set up under international law to assist the parties to resolve their dispute. Both parties are signatories to the UN convention that provides the mechanism. 

For goodness sake! Australia should take advantage of the expertise of these five eminent commissioners to assist finding an equitable solution. It is likely to be a mostly private process and the report it produces is non-binding.

I dearly hope that Australia's 'haggling in the Hague' is unsuccessful and that the commission, whilst accepting their concerns, lets the process proceed. 

Otherwise the dispute will intensify, damaging our relationship and leaving us unprepared for the changes to come in the Timor Sea.

Tuesday 30 August 2016

After reading the Media Release of the Brandis and Bishop:

How can we keep saying how generous we are when a boundary based on the median line would put the entire Joint Petroleum Development Area under the sovereignty of Timor-Leste?

On top of that we know that Darwin's development was massively boosted by the pipeline coming from Bayu-Undan. 90/10, often quoted, does not represent the total benefits enjoyed by both countries.

And of course no mention of withdrawal from UNCLOS arbitration as that does not suit the story.

Finally ... confident that both countries can overcome their differences? How? Australia is insisting 'it is what it is' and Timor should pull their heads in. 

Doesn't sound like the way to resolve a dispute to me.

Monday 29 August 2016

 
 

After watching the webcast:

Well there you go. The same old same old from Australia. Stick to the good deal you got and stop being difficult. The same patronising approach. Now in private they will go really hard to get of the process. 

Not UNCLOS Embracers, but UNCLOS Escapers! 

Noticed that AUS didn't even try to defend the indefensible withdrawal from UNCLOS arbitration jurisdiction. 

In the joint release from Brandis and Bishop there is a recanting of the idea that both parties must accept the outcome of the Commission. Apparently that now only applies to a decision on competence with the release making the point that if the thing goes ahead it is 'non binding'.

And I'm still looking for "Australia’s view of the Timor Sea dispute and how it might be resolved" promised in the media release from the Australian Embassy in Dili. 

I got the Australian view about the Timor Sea but I seem to have missed "how it might be resolved" .... 

I do take heart in the idea that most Aussie voters voted for parties who are for a negotiation of maritime boundaries with East Timor in the last election.

Time for a cup of tea. 

 
 

Policy Paper

Whilst things were unfolding in the Hague on the evening of the 29th of August, the Prime Minister of East Timor was launching a Policy Paper on Maritime Boundaries. This is a book, with about 90 pages, but easy to read and plenty of pictures and maps. There is also a good overview in the first Chapter of the issue.

This is the kind of thing many of us have been hoping to get a hold of and the Goverment's Maritime Boundary Office seem to have done a lot of work to put this together. Its a big file, about 9 MBs but definitely worth having. Click on this link and it will start downloading.

Much of what the presenters said in the Hague last night is set out in the paper.

The Government put out a release about the launch which said:

Government launches landmark Policy Paper on Maritime Boundaries

H.E. Prime Minister Dr. Rui Maria de Araújo today launched the Timor-Leste Policy Paper on Maritime Boundaries, at an official event at the Ministry of Foreign Affairs and Cooperation, in Dili.

The Prime Minister said that the document “tells the story of Timor-Leste’s struggle for sovereign rights over our seas – from the past to the present, and what it means for the future.”

The Policy Paper outlines the relevant principles of the law of the sea and sets out Timor-Leste’s position on where its maritime boundaries should lie under international law. It also provides an overview of Timor-Leste’s history, and the history of Timor’s maritime boundary issues.

The Timor-Leste Policy Paper on Maritime Boundaries was launched in Dili, as the Chief Negotiator for Maritime Boundaries, H.E. Kay Rala Xanana Gusmão, and the Minister of State and of the Presidency of the Council of Ministers, H.E. Agio Pereira participated in a presentation Timor-Leste’s case for maritime boundaries at an open session of the Conciliation Commission in The Hague as part of the compulsory conciliation proceedings on maritime boundaries.

At the launch in Dili the Prime Minister said establishing maritime boundaries was a priority for the people and Government of Timor-Leste and noted that “Permanent maritime boundaries will provide certainty for many of our industries including customs, security, immigration services, tourism, fisheries and resources. This certainty”, he said, “will strengthen confidence and encourage business and investment and lead to more jobs. This, in turn, will boost our economy and contribute to building a prosperous future for our people. “

The first section of the Policy Paper contains an executive summary which is available in Tetum, Portuguese and English. The paper can be downloaded from the website of the Maritime Boundary Office at www.gfm.tl. ENDS

A nice resource to have - now listed on our own Resources Page.

International Law

As promised here are some of the relevant articles of international law regarding the maritime delimitation between East Timor and Australia and the  laws that set up the Conciliation process. UNCLOS is available here and the Statue of the International Court of Justice here.

 
 

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

Article 74

Delimitation of the exclusive economic zone between States with opposite or adjacent coasts

1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.

Article 83

Delimitation of the continental shelf between States with opposite or adjacent coasts

1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.  

Article 286

Application of procedures under this section

Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

Article 298

Optional exceptions to applicability of section 2

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a)

(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

(b)

(ii)  after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;

(iii)  this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;

disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;

(c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.

2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention.

3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party.

4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration.

5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree.

6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.

ANNEX V. CONCILIATION

SECTION 1. CONCILIATION PROCEDURE
PURSUANT TO SECTION 1 OF PART XV

Article 1

Institution of proceedings

If the parties to a dispute have agreed, in accordance with article 284, to submit it to conciliation under this section, any such party may institute the proceedings by written notification addressed to the other party or parties to the dispute.

Article 2

List of conciliators

A list of conciliators shall be drawn up and maintained by the Secretary-General of the United Nations. Every State Party shall be entitled to nominate four conciliators, each of whom shall be a person enjoying the highest reputation for fairness, competence and integrity. The names of the persons so nominated shall constitute the list. If at any time the conciliators nominated by a State Party in the list so constituted shall be fewer than four, that State Party shall be entitled to make further nominations as necessary. The name of a conciliator shall remain on the list until withdrawn by the State Party which made the nomination, provided that such conciliator shall continue to serve on any conciliation commission to which that conciliator has been appointed until the completion of the proceedings before that commission.

Article 3

Constitution of conciliation commission

The conciliation commission shall, unless the parties otherwise agree, be constituted as follows:

(a) Subject to subparagraph (g), the conciliation commission shall consist of five members.

(b) The party instituting the proceedings shall appoint two conciliators to be chosen preferably from the list referred to in article 2 of this Annex, one of whom may be its national, unless the parties otherwise agree. Such appointments shall be included in the notification referred to in article 1 of this Annex.

(c) The other party to the dispute shall appoint two conciliators in the manner set forth in subparagraph (b) within 21 days of receipt of the notification referred to in article 1 of this Annex. If the appointments are not made within that period, the party instituting the proceedings may, within one week of the expiration of that period, either terminate the proceedings by notification addressed to the other party or request the Secretary-General of the United Nations to make the appointments in accordance with subparagraph (e).

(d) Within 30 days after all four conciliators have been appointed, they shall appoint a fifth conciliator chosen from the list referred to in article 2 of this Annex, who shall be chairman. If the appointment is not made within that period, either party may, within one week of the expiration of that period, request the Secretary-General of the United Nations to make the appointment in accordance with subparagraph (e).

(e) Within 30 days of the receipt of a request under subparagraph (c) or (d), the Secretary-General of the United Nations shall make the necessary appointments from the list referred to in article 2 of this Annex in consultation with the parties to the dispute.

(f) Any vacancy shall be filled in the manner prescribed for the initial appointment.

(g) Two or more parties which determine by agreement that they are in the same interest shall appoint two conciliators jointly. Where two or more parties have separate interests or there is a disagreement as to whether they are of the same interest, they shall appoint conciliators separately.

(h) In disputes involving more than two parties having separate interests, or where there is disagreement as to whether they are of the same interest, the parties shall apply subparagraphs (a) to (f) in so far as possible.

Article 4

Procedure

The conciliation commission shall, unless the parties otherwise agree, determine its own procedure. The commission may, with the consent of the parties to the dispute, invite any State Party to submit to it its views orally or in writing. Decisions of the commission regarding procedural matters, the report and recommendations shall be made by a majority vote of its members.

Article 5

Amicable settlement

The commission may draw the attention of the parties to any measures which might facilitate an amicable settlement of the dispute.

Article 6

Functions of the commission

The commission shall hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement.

Article 7

Report

1. 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.

2. The report of the commission, including its conclusions or recommendations, shall not be binding upon the parties.

Article 8

Termination

The conciliation proceedings are terminated when a settlement has been reached, when the parties have accepted or one party has rejected the recommendations of the report by written notification addressed to the Secretary-General of the United Nations, or when a period of three months has expired from the date of transmission of the report to the parties.

Article 9

Fees and expenses

The fees and expenses of the commission shall be borne by the parties to the dispute.

Article 10

Right of parties to modify procedure 

The parties to the dispute may by agreement applicable solely to that dispute modify any provision of this Annex.

SECTION 2. COMPULSORY SUBMISSION

TO CONCILIATION PROCEDURE

PURSUANT TO SECTION 3 OF PART XV

Article 11

Institution of proceedings

1. Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notification addressed to the other party or parties to the dispute.

2. Any party to the dispute, notified under paragraph 1, shall be obliged to submit to such proceedings.

Article 12

Failure to reply or to submit to conciliation

The failure of a party or parties to the dispute to reply to notification of institution of proceedings or to submit to such proceedings shall not constitute a bar to the proceedings.

Article 13

Competence

A disagreement as to whether a conciliation commission acting under this section has competence shall be decided by the commission.

Article 14

Application of section 1

Articles 2 to 10 of section l of this Annex apply subject to this section.

...ooOOOoo...

 
 

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

 b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

 d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

 

 

Australia, Embracing or Evading UNCLOS?

So this evening, Australian time, the Opening Session of the Conciliation Commission involving Australia and Timor-Leste begins in The Hague. At 5:30 tonight I will be watching closely.

Are we going to see  any change in Australia's position?

Our Timorese friends want to establish a maritime border between our two nations. One that is fair and consistent with international law. Too much to ask? I have argued before that moving forward to negotiate this is in Australia's national interest. The ALP and the Greens and a number of independents agree, their Timor Sea policy is: negotiate the boundary. Now.

Is our position on the Timor Sea going to pass the 'pub test' tonight? Will our walk match our talk? Is our rhetoric on the South China Sea inconsistent with our policy in the Timor Sea?

You know what, I don't think we have to wait until tonight. Whilst I remain hopeful that my country will do me proud, I have to admit it is a 'hope against hope'  - and this is why:

Context of the Commission

Australia doesn't want to be there. No way.

Timor initiated the proceedings under a "Compulsory Submission" provision in UNCLOS which obliges Australia to submit. There are two principle reasons they could do this. Firstly because Australia is one of only 20% of signatories to UNCLOS that refuses arbitration on maritime boundary matters. Our opting out of  arbitration was deliberate and targeted. It was done in 2002 to block Timor's access to an independent umpire. Secondly Australia has refused to negotiate despite repeated requests for substantive discussions on maritime boundaries over several years.

Last week the Australian Embassy issued a Press Release that said  "Australia’s statement will outline Australia’s view of the Timor Sea dispute and how it might be resolved".

Well here's how it can be resolved: through good faith negotiation or resubmitting to arbitration. 

If there really is something new and constructive to come from the Australian Government about resolving the dispute why on earth haven't we heard it before?

Spin vs Schedule

Australia doesn't want to stay there. No way.

Before believing the spin look at the schedule. 

A half a day of the opening statements then two and a half days given over to "a hearing on certain objections to the competence of the Commission raised by Australia." 

Australia is trying to evade the procedure. Their hope is that the objections they raise will be dealt with on a preliminary basis and that the process will be ended, so that there is a decision by the five commissioners that the Commission does not technically have the competence to proceed.

Wow. 

Can we pretend to embrace UNLCOS as the way to settle maritime disputes when at the same time we seek to evade UNCLOS as it applies to us? 

We have to remember that however the Australian Government seeks to portray it, a positive or negative ruling on competence will be a technical decision about certain conditions being met under Annex V of UNCLOS. 

It will not be a decision about the merits of Timor's campaign to establish a maritime boundary. 

We shouldn't fall for the spin, the schedule tells the story.

 
Will these five independent Commissioners get the opportunity to see if UNCLOS can make a contribution to resolving the dispute between Australia and Timor-Leste?

Will these five independent Commissioners get the opportunity to see if UNCLOS can make a contribution to resolving the dispute between Australia and Timor-Leste?

 

Brinkmanship on the Brink

Then the extraordinary statement of Julie Bishop reported by The Australian and the ABC over the weekend that Australia considered the “decision of the upcoming compulsory conciliation binding on both sides”.

Now Julie Bishop knows that this process is a 'non binding process' so what is this about? 

I suspect it is about trying claim some moral high ground when Australia has little to claim and also to try to send a message that if Australia succeeds with their objections then the issue is done and dusted and Timor should 'drop it.'

Not so on both counts.

Sorry, you can't claim any moral high ground when you are only part of the process because you are compelled to do so because you will not be subject to arbitration and will not talk to your neighbour.

And negative  technical decision on competence would in no way reflect on the merits of Timor's campaign to establish a maritime boundary that is in keeping with international law.

The East Timor leadership have been quiet and very respectful of the process leading into the opening statements and hearing tonight.

But not Ms Bishop - a case of attempted 'Brinkmanship on the Brink'?

So Embrace or Evade? - Champion or Challenge?

Well I'm afraid its pretty obvious. Australia wants to say one thing and do another. Wants to appear as a champion of UNCLOS as a way to solve international maritime disputes whilst at the same time challenging an UNCLOS process which is there to solve maritime disputes.

I think we can already see the 'true colours.'

And yet I hope, perhaps 'against hope!'

Remember to tune in here at 5:30pm AEST.

PCA Press Release

What appears below is a copy of the press release issued on the 22nd of August 2016 pasted into a web format for convenience. The official release is downloadable from the link below.

PRESS RELEASE

 
 

Download the pdf version

Conciliation between
The Democratic Republic of Timor-Leste and The Commonwealth of Australia

 

THE HAGUE, 22 August 2016

Commission to hold public opening session followed by hearing on competence

On 29 August 2016, the Conciliation Commission will hold an opening session in the conciliation proceedings between The Democratic Republic of Timor-Leste (“Timor-Leste”) and the Commonwealth of Australia (“Australia”) under Annex V of the United Nations Convention on the Law of the Sea (the “Convention”) at the Peace Palace in The Hague, the Netherlands.

The Commission has decided, with the agreement of the Parties, that the opening session of the hearing will be webcast live on the website of the Permanent Court of Arbitration. During the opening session, the Parties are invited to address the background to the conciliation and the competence of the Commission.

The opening session will be followed by a hearing on certain objections to the competence of the Commission raised by Australia. This hearing will continue through 31 August 2016 and will not be webcast or open to the public. After having heard the Parties on the objections raised by Australia, the Commission will decide whether to rule on Australia’s objections as a preliminary matter or to continue with the conciliation proceedings and defer the question of competence for later decision.

Webcast of Opening Session

The live webcast will be made available on a dedicated webpage hosted on the PCA website via the following link: https://pca-cpa.org/en/news/timor-leste-australia/. No accreditation or password will be required to access the live webcast.

Video of the opening session and transcripts will also be posted to the PCA website following the session.

The schedule for the opening session of the hearing will be as follows:

 
 

Background on the Proceedings

These conciliation proceedings concern the maritime boundary between Timor-Leste and Australia and were initiated by Timor-Leste on 11 April 2016 by way of a “Notification Instituting Conciliation Under

Section 2 of Annex V of UNCLOS” addressed to Australia pursuant to Article 298 and Annex V of the Convention.

On 2 May 2016, Australia submitted “Australia’s Response to the Notice of Conciliation”.

The five-member Conciliation Commission was constituted on 25 June 2016 and is chaired by H.E. Ambassador Peter Taksøe-Jensen (Denmark). The other members of the Commission are Dr. Rosalie Balkin (Australia), Judge Abdul G. Koroma (Sierra Leone), Professor Donald McRae (Canada and New Zealand), and Judge Rüdiger Wolfrum (Germany).

On 28 July 2016, the Conciliation Commission held a procedural meeting with the Parties at the Peace Palace in The Hague, the Netherlands.

With the agreement of the Parties, the Permanent Court of Arbitration acts as Registry in the proceedings.

***

The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties. The PCA’s International Bureau is currently administering 8 interstate disputes, 75 investor-State arbitrations, and 34 cases arising under contracts involving a State or other public entity. More information about the PCA can be found at www.pca-cpa.org.

Contact: Permanent Court of Arbitration E-mail: bureau@pca-cpa.org