Red Flags - The JSCOT Report and the latest PCA Release

So what is happening with the maritime boundary that Australia has committed to negotiating with East Timor?

The confidential nature of the United Nations Conciliation Commission, where five experts are working to help the parties ‘with a view to reaching an amicable settlement’, means that there is very little we can know.

The Commission is required to produce a report by 19 September 2017, which will then be delivered to the UN Secretary General.

The five Commissioners in the front row with a difficult task ahead

The five Commissioners in the front row with a difficult task ahead

In October last year a press release from the Commission said that the parties had agreed that they “should aim to reach agreement in the timeframe of the conciliation process.” Are we on track?

One public hearing and two recent publications raise red flags that should concern supporters of Timor’s quest for a fair border and motivate action now.

The JSCOT Hearing – an opportunity to ‘run down’ East Timor

The Joint Standing Committee on Treaties review of the CMATS termination was revealing. JSCOT is made up of Australian Members of Parliament and Senators and is required to investigate and report on matters arising from treaties.

Because part of the ‘package of confidence building measures’ negotiated under the UN Conciliation Commission included changing and terminating the CMATS treaty, JSCOT was requested by Foreign Minister, the Hon Julie Bishop MP to consider this action and table a report by the 30th of March 2017.

Why the rush? Because East Timor had given notice to terminate CMATS and that was to become effective on the 10th of April.

Submissions were invited and many supporters rallied. Our submission, one of 32 received is here.

A public hearing was held at Parliament House in Canberra on the 14th of March.

It was a ‘set up’ and reflected the condescending, patronizing tone that the Timorese have endured for years from Australian Government representatives.

Why would I suggest that?

Firstly, only two external witnesses were admitted. Despite many of the submissions expressing a desire to give evidence none were called. The Committee only heard from Professor Clive Schofield and Dr. Rebecca Strating, described as their ‘Academic Expert Panel’.

Amongst many academics who are experts on the Timor Sea, Dr Strating is the most consistently negative about Timor-Leste’s approach to delimiting the boundary and it seems was an intentional choice to back the position of DFAT and support what is evidently the Australian Governments communication strategy on the issue:

  • avoid discussing international law
  • maintain that the original arrangements are fair
  • push the notion the Timor could become a failed state and
  • ramp up fear of the Indonesia/Australia boundary unraveling

Secondly, it was apparent that the Chair, the Hon Stuart Robert MP, was aligned to this strategy and guided the hearing, which took only an hour an a half, to facilitate those key messages. It is clear, particularly in the video, that he is fond of Ms. Strating’s evidence.

Here are two examples from the transcript:

CHAIR: You seem to indicate that Timor-Leste's overt desire, driven by personalities, to have the pipeline go to Timor-Leste means they may well have been the architect of their own demise, which is why in the last decade no-one has developed anything.

Mr DANBY: I think you are over-interpreting the remarks.

CHAIR: Well, I put it to her: she did not say I was over-interpreting.

Dr Strating: I think that, paradoxically, Timor-Leste's ambitions to secure its sovereignty, and to secure its economic sovereignty as well, through economic development are undermining its capacity to develop.

And then this exchange at the end of the hearing:

CHAIR: Tremendous. Most enlightening. 'The architect of their own demise' is my favourite statement for the day. Thank you, Dr Strating.

Dr Strating: It is depressing, but if there is not some sort of compromise then that—

CHAIR: Like fifty-fifty?

Dr Strating: This is precisely why Australia has maintained, for a long period of time, its belief that the CMATS should be maintained, but—

CHAIR: Quite rightly.

And thirdly, it worked.  The one media article that came out about the hearing penned by AAP’s Lisa Martin carried the Chair’s favorite statement of the day “Timor may be architect of own demise” as its headline and included most of the ‘key messages’ delivered, principally by Dr Strating.

The JSCOT Report - Alternative Facts and Good Faith

JSCOT issued its report on the 30th of March supporting the amendments to CMATS and recommending ‘binding treaty action be taken.’ This was no surprise as the Government had already agreed on this course of action and JSCOT was not going to stand in its way.

As expected it incudes references to Timor-Leste becoming a ‘failed state’, Timor taking a ‘huge risk’ and the view that CMATS was fair. Only a handful of the 32 written submissions are referenced in the report and mostly when they supported these views.

The Committee’s view that “the CMATS Treaty was negotiated in good faith” is wonderfully destroyed in an “Additional Comments” section hidden at the very end of the report where the Australian Greens say they are:

“surprised by the Committee’s stated disagreement with the contention in many submissions that Australia behaved oppressively or unfairly towards Timor-Leste in the negotiation of the CMATS Treaty. It is manifestly clear that Australia behaved in a reprehensible fashion towards its fledging neighbour. The Greens would like to place on the record that Australia did not negotiate the CMATS Treaty in good faith, having spied on East Timorese Cabinet discussions regarding the Treaty in 2004. To assert otherwise would be to ignore a wealth of evidence against Australia.”

However what raised the biggest red flag in our analysis of the report was this statement at paragraph 2.19:

“In contrast, Australia favours principles of ‘natural prolongation’, which gives seabed territory that extends to the edge of a geomorphic continental shelf, to the Timor Trough (see Figure 2.1). The Timor Trough is a 3,500- metre trench 40 nautical miles from the coastline of Timor-Leste, dividing the two continental shelves. Delimitation according to this principle would result in Greater Sunrise falling within Australia’s maritime boundary. At the public hearing, DFAT confirmed that Australia maintains its position on the principle of natural prolongation.”

This assertion comes after the point made in the preceding paragraph that:

“Timor- Leste claims that the boundary should be drawn in the middle of the sea between the two states. These claims rest on the principle of ‘equidistance’ under which a median line should be drawn between Australia and Timor- Leste. Delimitation drawn according to this principle would see the sea border drawn significantly closer to Australia than Timor-Leste, and the majority of gas and oil reserves in the disputed territory would fall within Timor-Leste maritime boundary (see Figure 2.2)”

The report in its section on the Maritime Boundary Dispute says that many of the submissions support Timor-Leste’s position and that they “reference changes in international law” but conveniently omits the very clear evidence given by expert Professor Clive Schofield at the hearing.

In the hearing he said:

“The drafting of the United Nations Convention on the Law of the Sea took nine years to complete and was opened for signature in 1982. In a subsequent case in 1985 between Libya and Malta the International Court of Justice, on the basis of UNCLOS being introduced, dismissed geophysical factors in delimitation—that is, the geomorphology or the shape of the continental shelf and also the geology factor, so within 200 miles—that is, within 400 miles of opposite states—geophysical factors, natural prolongation principles, would no longer apply. The ICJ's wording was that they would be 'irrelevant to maritime delimitation'. So we have had a considerable shift away from natural prolongation which may cause issues for Australia in any delimitation negotiation with Timor-Leste if Australia's position still rests on natural prolongation.”

Not only does he debunk Australia’s ‘natural prolongation’ argument he goes on to validate the three step process advocated by East Timor in their Opening Statement to the Conciliation Committee on the 29th of August 2016:

“We have now something of a road map from International Court of Justice cases and other international tribunals. From 2009 in the Black Sea case between Ukraine and Romania the International Court of Justice introduced what has been termed the three-stage process, which develops from previous cases where there were two stages. The three stages really are: first, to define a provisional delimitation line based on equidistance unless it is unfeasible to do so; secondly, to look at factors that might lead you to shift that line one way or the other, such as the concavity of the coastline so that a country's jurisdiction is, if you like, squeezed off by neighbouring states; and, thirdly, to undertake what is termed a disproportionality test.”

This is remarkable. The Australian Government knows that its position on ‘natural prolongation’ is not in line with international law. It knows that the median line is the starting point under international law. And even though it is irrelevant it knows that there are not in fact two shelves.

And yet it March 2017 it asserts and confirms a position that it knows is not sustainable under international law.

These are the ‘alternative facts’ of the Australian Government regarding the Timor Sea.

Not right – but assert them anyway.

Is this the position that is being put cynically by Australia in the UN Conciliation Commission? If it is and if there is no fall back to the median line as a starting point I would say this:

  1. the negotiation by Australia is not being conducted in good faith
  2. there will be no agreement reached by the 19th of September and
  3. the Commission will debunk Australia’s position as inconsistent with international law in its report.

As supporters of Timor-Leste’s position we need to ask our politicians to state their position on the median line.

The Government of Australia says it is committed to negotiate a maritime boundary with Timor-Leste in good faith. Will the Government agree that the starting point for that boundary is the median line between the two coasts consistent with international law?

If not why not? 

The latest Commission Release – hosing down expectation

What adds to concerns arising from the JSCOT hearing and report is the latest Press Release from the Conciliation Commission issued by the PCA. It is the first release that is trying to ‘hose down’ expectations.

In contrast to the Press Release after Singapore [Optimism Pervades Recent Meetings with Conciliation Commission - 13 October 2016] and the Trilateral Joint Statements of 7 and 24 January 2017 this one talks about how these are “difficult issues for any State” the process is a “marathon, not a sprint” and that they “still have work to do.

My reading of this is that Australia is being difficult and that things are not going well.

This release also begins to put the Commission a bit more at arms length from the parties saying things like “the Commission is not here to decide the parties dispute”, the goal is to “help them find an agreement that is both fair and achievable, in accordance with the UN Convention on the Law of the Sea” and that “we will continue to meet with the Parties with that goal in mind.”

This change of tone rings alarm bells and indicates that Australia’s fine sounding public statements are not indicative of their behavior in the secrecy of the Commission.

Responding

We should be very concerned by this and assume that Australia is not playing fairly. Now more that ever we need to let political class know that we are watching this process and expect Australia to respect international law and be a good neighbor.

Please sign our petition and stay tuned for a push for a Senate Inquiry. Contact your local politician – we are happy to help. Get in touch with us here.

And be prepared for more undermining talk – more blaming Timor for taking a risk, for becoming an architect of its demise, and being on the way to become a failed state.

This is the dirty bag of tricks needed when you will not countenance giving your neighbor their due rights under international law.

What a failure in terms of Australian National Interest.

Our Defence Policy White Paper has as one of its primary themes a close and positive relationship with Timor-Leste in the context of a growing China. We should be maximizing our contact,  our business partnerships and our high-level interactions – but instead we disconnect, undermine the countries reputation and assert ‘natural prolongation’.

If what we are seeing over the next few months is more of the same – what a tragedy that would prove to be for us and our Timorese neighbours.

Let’s be active now – we cannot wait until September.