Timor's Veterans Speak Out

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

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

Dear Chair, Deputy Chair & Members,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours in solidarity and friendship

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

Response to Saturday Extra

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

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

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

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

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

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

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

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

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

Submission to Joint Standing Committee

Certain Maritime Arrangements - Timor-Leste Submission 17

SUBMISSION

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

from

Timor Sea Justice Forum NSW (TIMFO)

10 March 2017

Contact: Susan Connelly rsj

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

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

1. Background

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

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

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

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

2. Overview

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

2.1 Consequences of not supporting CMATS termination

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

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

2.2 Consequences of supporting CMATS termination

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

3. History

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

3.1 Timor Sea influence on Australian decisions

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

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

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

3.2 Timor Gap

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

3.3 Withdrawal from UN instruments

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

4. Australian International Standing

4.1 Recent Statement

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

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

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

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

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

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

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

5. Economy

5.1 Disparity between the two nations

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

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

5.2 Justice

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

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

5.3 Indonesia

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

5.4 Strengthening relationship with Timor-Leste

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

6. Regional Security and Stability

6.1 Economic basis of security

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

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

6.2 Vacuums tend to be filled

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

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

6.3. Completion of Australia's border

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

7. Conclusion

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

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

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

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

8. Recommendations

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

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

8.2.1  according to current international law and standards

8.2.2  using median line principles

8.2.3  in good faith

8.2.4  with all possible speed

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

Appendix 1


Significant inclusion and omission from NIA

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

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

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

Appendix 2

Comment on Articles in Annex V

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

Appendix 3

Maps

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

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

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

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

End Notes

These notes are for references without hyperlinks

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

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

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.