Government of Australia, you have a big opportunity in front of you.
Please embrace it!
Use the United Nations Conciliation process with East Timor, which must now be in its final stages, to demonstrate to the region that you really do care about the ‘rules based order’ and believe in the ability of the United Nations Convention on the Law of the Sea [UNCLOS] to settle maritime disputes.
Failure to broker a mutually acceptable agreement in this process will undermine the credibility of our foreign policy position on maritime claims for years to come.
It would throw a spotlight on the hypocrisy of a country that says “do as I say, not as I do.”
Over the past two weeks Minister of Foreign Affairs, the Hon. Julie Bishop MP, has continued to strongly put the Australian Governments position that maritime disputes must be solved in accordance with international law and specifically as reflected in the 1982 United Nations Convention on the Law of the Sea [UNCLOS].
In Thailand last week Minister Bishop said:
“The pursuit of national interest is testing the norms and rules which have served our region for so long, and which are the basis of our security and prosperity.”
Well I am sure the Timorese, who continue to be blocked by Australia from access to international maritime arbitration, would agree.
Bishop, of course, is thinking more about North Korea and China’s position in the South China Sea.
She went on:
“There is a compelling need to defend the rules-based order in the region. We need resilient and clear processes to manage conflict and the maintenance of the norms that apply equally to all states, large and small.”
Yes Minister, large and small.
Then yesterday in Manila the Australia-Japan-United States Trilateral Strategic Dialogue issued their joint statement.
This is even more specific about what the ‘rules based order is’.
“The Ministers called on all claimants to make and clarify their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to resolve disputes peacefully in accordance with international law.
The Ministers called on China and the Philippines to abide by the Arbitral Tribunal's 2016 Award in the Philippines-China arbitration, as it is final and legally binding on both parties.
The Ministers noted the significance of the UNCLOS dispute settlement regime and the Tribunal’s decision in discussions among parties in their efforts to peacefully resolve their maritime disputes in the SCS.”
Well, the Australian Government appears to love UNCLOS.
My goodness we are even spending millions of dollars to assist countries in the South Pacific make and settle their maritime claims under UNCLOS.
OK – so let’s cut to the chase.
Australia and Timor-Leste have a maritime dispute.
Timor-Leste’s options to resolve it under UNCLOS are limited because Australia actually refuses to be subject to jurisdiction on maritime boundaries.
Timor took about the only option left to it under UNCLOS – a Compulsory Conciliation process – initiated in April 2016.
Australia fought foot tooth and nail to get out of it, funded by the Australian taxpayer - but was told in September 2016 by the Commissioners that the process would go ahead.
We are now getting towards the end of this process which is supposed to take 12 months.
East Timor is doing exactly what Australia, the US and Japan are calling for in the region.
They are seeking to “clarify their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and to resolve disputes peacefully in accordance with international law.”
That is absolutely their intent, made clear in the Opening Statements in the Hague in August 2016.
The Compulsory Conciliation Process that Timor-Leste and Australia are now in is undeniably part of the “UNCLOS dispute settlement regime” hailed by Australia, Japan and the US in the statement.
In fact it was included in Annex V of UNCLOS in order to resolve a maritime dispute between two countries in our current position - specifically where one country [Timor–Leste] is denied access to arbitration by another country [Australia] and that same country [Australia] persistently refuses to negotiate the dispute.
It is there to get us ‘unstuck’.
Now this is the first time this part of the UNCLOS dispute settlement regime has been used.
So - will our position in the negotiations now coming to a close lead to an amicable resolution of the dispute and celebration of the “UNCLOS dispute settlement regime”?
Or - will our intransigence sabotage our own public policy position by ensuring the UNCLOS dispute settlement regime is seen as a failure in our own backyard.
I see a rare opportunity for a win here. Maybe it means giving a little more than hoped on the part of Australia, but in the big picture it’s an opportunity for a big win.
Time to set an example in the Timor Sea.
As this process moves towards its conclusion I want to be part of the celebrations when an amicable resolution is presented in the Commissioners report to the United Nations Secretary General.
Where the next step in our chequered history is, finally, a mutual agreement on the maritime boundary between our countries.
This agreement would not only be a win for Timor and Australia, it would be a huge win for the ‘international rules based order’ and a great endorsement of UNCLOS as a mechanism to resolve maritime disputes.
There is a lot to gain.
Let’s do it.