Do as I say not as I do

Australia has been very outspoken about the award handed down by the tribunal regarding the South China Sea.

The immediate official response to the award from the Office of Julie Bishop said:

"Australia supports the right of all countries to seek to resolve disputes peacefully in accordance with international law, including UNCLOS."

"This decision is an important test case for how the region can manage disputes peacefully" and

"It is an opportunity for the region to come together, and for claimants to re-engage in dialogue with each other based on greater clarity around maritime rights."

Frankly all this is a bit rich.

Australia will not countenance international arbitration on matters related to maritime boundaries with our near neighbour, East Timor.

We quietly withdrew from the jurisdiction on the eve of East Timor's independence in order to block the young nations access to the ‘independent umpire’.

Our excuse was exactly the same espoused by China – we prefer bilateral negotiation.

And yet we persistently refuse to enter into substantive negotiation with our neighbour.

No 'independent umpire', no negotiation.

East Timor cannot establish its maritime boundary by arbitration under international law precisely because Australia denied it that right.

The reality of this position was not lost on members of the Australian Parliamentarians tasked to review Australia’s 2002 UNCLOS Declaration withdrawing from jurisdiction in the area of maritime boundaries.

Six of the Committee members stated that the declaration:

"damages Australia’s international reputation and may not be in Australia’s long-term national interests."

They went on to say:

"The declaration may be interpreted as an effort to intimidate and limit the options of neighbouring countries in relation to any future maritime border disputes."

Too right.

After the award on the South China Sea came down on 11 August David Wroe, writing in the Sydney Morning Herald pointed out that China: 

“... rejected "third party" views - such as courts ruling on international law - because it prefers to negotiate directly with its rivals, denying these smaller contestants a level playing field.” 

Sound familiar?

It’s no wonder that the inconsistency of Australia’s position on the South China Sea and the Timor Sea were raised in the media for days after the award.

Wobbly on the Soapbox

Australia likes to say that it already has a negotiated position in the Timor Sea and that it is in fact very generous to Timor-Leste. We are also reminded when the legitimacy of the Timor Sea policy is attacked that Australia has a good aid program in the country.

If you look closer at the history, rather than take the DFAT talking points on face value, those kinds of statements may start to bother you, as they do me. 

The Timorese do not ask for charity only justice.

The negotiations around the Timor Sea Treaty [2002] the IUA [2003] and CMATS [2006] involved pressure, bullying and allegedly spying under the guise of an aid project.

Foreign Minister Downer during negotiations in 2000 told the head of the UN Transitional Authority for East Timor, Sergio Viera de Mello, that:

“Australia could bring meltdown to East Timor if it so chose.”

He also castigated the East Timor Prime Minister in 2002 in the course of negotiations:

 “We don’t like brinksmanship. We are very tough. We will not care if you give information to the media. Let me give you a tutorial in politics – not a chance.”

There you have some indication of the tone.  

During the process of negotiating the provisional arrangements between Australia and Timor-Leste Australian aid was withdrawn from NGOs that supported Timor-Leste’s right to a maritime boundary ... there was some very nasty stuff going down.

Reminds me of the warning coming from some members of the Parliamentary Committee about perception of efforts “ to intimidate and limit” 

Journalist Paul Cleary wrote an excellent book about the whole process of treaty negotiations called Shakedown. I highly recommend it.

If there is to be a negotiated settlement in the South China Sea, as some have suggested, the behavior of Australia in the negotiation process with Timor-Leste should be studied as an example of what not to do.

The Australia Timor-Leste example shows that an uneven and pressured negotiation may be unlikely to stand the test of time.

I have had lawyers tell me that these temporary resource sharing treaties negotiated with Timor are some of the most draconian they have ever seen.

Fortunately they are also somewhat contradictory – because whilst one [CMATS] seeks to apply a fifty-year gag on the Timorese regarding maritime boundaries, they are also all  ‘without prejudice’ to the delimitation of maritime boundaries.

So the spirit of UNCLOS trumps Australia’s nasty negotiations – with the convention encouraging permanent boundaries to be settled without being hampered by provisional arrangements.

Flawed Foundations 

Like China, Australia’s maritime border thinking about Timor-Leste has been influenced by ‘Historic Rights’ and Australia’s own version of the ‘9 Dash Line’. Ours is called the ‘Mackay Line’.  On the map both look patently unfair. 

The position of the Australian Government in the 1950 and 60s was that anything south of this line, which is about 30 miles from the coast of Timor and 100 miles from the coast of Australia, is ours.

So in the 1960’s, when East Timor was ‘Portuguese Timor’, Australia went ahead and unilaterally issued oil licenses that encroached on Timor’s half of the Timor Sea.

This is the flawed foundation that is the basis of the Turnbull Government’s Timor Sea policy.

 

According to historian Robert King

“The Minister for National Development, David Fairbairn, had unsuccessfully argued in a November 1965 Cabinet submission in favour of falling back to the median line, on the ground that the time would soon come when it would be possible to argue that there was a common continental shelf between Australia and Timor and that therefore the applicable international rule was the median line.”

The policy of ‘pragmatism over principle’ prevailed. But pragmatism at what cost? Self interest at what cost?

In 1975 Australia effectively gave the green light to Indonesia to proceed with the invasion of Timor. A major motivation was to snare the oil in the Timor Sea.

How do we know this?

From information preceding the invasion and the actions of the Australian Government soon after.

A few months before the invasion Australia’s ambassador to Jakarta sent a cablegram to Canberra saying that the Department of Minerals and Energy

“might well have an interest in closing the present gap in the agreed sea border and this could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or independent Portuguese Timor.”

The records show that Australia was very aware of the brutality and violence that came with the occupation beginning in 1975 and in the decades that followed over a quarter of the population were killed.

Australia consistently ignored UN resolutions about Timor and was one of the few western countries to recognize Indonesian sovereignty, unofficially in 1978 and then officially in 1979.

This was necessary to sort out the border with the invaders to enjoy the spoils.

Perhaps a policy of ‘plunder over principle’ is more apt.

Again recounted in Robert King’s history ‘A Gap in the Relationship’,

“On 15 December 1978, Foreign Minister Peacock announced to a press conference ... that Australia would give de jure recognition of Indonesia's sovereignty over East Timor early in 1979 when talks on delineating the seabed boundary between the province and Australia began: 'The negotiations when they start, will signify de jure recognition by Australia of the Indonesian incorporation of East Timor'. “

The photo of Gareth Evans signing the illegal Timor Gap Treaty in 1989, which was then used as a starting point for the later treaties with an independent Timor, is infamous in Timor. 

As former Commander in Chief of the Resistance and current Chief Negotiator for Maritime Boundaries, Xanana Gusmao says "they were clinking their champagne glasses flying above the oil and gas fields in the Timor Sea that belonged to us ... whilst below we were dying."

There’s more ... but you get the idea.

 

Australia’s policy in the Timor Sea is built on this flawed foundation, this ugly history.

And while there are still some who are hanging onto this policy with a white-knuckled death grip ...

History will not be on their side.

We are better than this

No matter how hard you try to shine it up and throw glitter over it, Australia position on the Timor Sea still smells after all these years.

It is ugly and wrong and Australia is better than this. We are better than this. The goodwill of our people towards our near neighbour far outruns the decency of our government.

We have had the courage over the recent years to upgrade our outlook on other issues and demonstrate some maturity.

Now its time for this.

Now it is time to draw the line.

The current position cannot survive the light of scrutiny and undermines the principled position of Australia on the South China Sea.

Labor knows it, the Greens know it, Xenophon knows it and so do many of the independents.

Certainly the Chinese know it.

Draw the Line

It is now time for the Government’s walk to match its talk and for Australia to complete its border work in the Timor Sea.

Not by playing games in a Compulsory Conciliation, with no binding powers, where it seems the Government is again using taxpayers money to wriggle out of accountability.

Not by dancing around using clever words to avoid the obvious.

Just by accepting that now is the time to sit at the table with our Timorese neighbours and draw the line.

Then, in Foreign Minister Bishop's words, we can really show how “the region can manage disputes peacefully” and have the claimants “re-engage in dialogue with each other based on greater clarity around maritime rights.”

Lets do it.