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.


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.