1. Why Are 10,000 East Timorese Protesting Outside The Australian Embassy?
By Natassia Chrysanthos, 23/3/2016
Over 10,000 East Timorese citizens gathered outside Australia’s embassy in Dili yesterday in one of the country’s largest ever protests. Protests are also being held this week outside Australian embassies in Manila, Jakarta and Kuala Lumpur in support of East Timor, and Further protests are scheduled for today in Sydney and tomorrow in Melbourne.
So what did we do to get our closest neighbour so offside? It all relates to a decade-long conflict around maritime boundaries between Australia and East Timor a fascinating but ugly case of international relations involving espionage, corporate interests and what many judge to be extremely un-neighbourly behaviour on our part. Here’s a summary of what’s gone down. –
Bad Neighbour: The Fraught History of Australia’s Relationship With East Timor
During Indonesia’s occupation of East Timor late last century, Indonesia and Australia made agreements to share the profits from oil and gas resources in the Timor Sea. Australia was closely partnered with oil companies, particularly Woodside Petroleum, which generated $900 million for the Australian government from the Timor Sea at the turn of the century alone. All was well for us and our finances.
Following East Timor’s bloody but successful arrival at independence in 2002, however, this all changed. Unsurprisingly, a newly independent East Timor – trying to kick-start a stable economy – saw that these oil fields in its backyard presented a great opportunity for revenue. In particular, it looked towards the Greater Sunrise fields – the largest oil and gas fields in the Timor Sea – which are estimated to be worth about $40 billion.
This was fair enough Australia’s claim to Greater Sunrise relies on out-dated ideas of maritime boundaries which have since been replaced by the ‘median line’ rule: an international norm that places boundaries at the strict halfway point between two nations. It puts Australia in a bit of a pickle, however: as many experts have suggested, current international law would place Greater Sunrise in Timorese territory.
The current and proposed maritime boundary between Australia and East Timor. (Source: Timor Sea Justice)
One would like to think that, as a developed nation with a relatively strong and diverse economy, we would recognise that East Timor (placed 128th on the Human Development Index) would probably benefit more from extra revenue here and, hey, it’s actually kind of the legal thing to do. So we’ll let East Timor have this one? Right?
Wrong. Instead, quite an ugly situation emerged.
Murky Waters: Australia’s Dodgy Practices
Australia and East Timor attempted to settle maritime boundaries back in 2002 but they didn’t come to a concrete agreement, and this remains the case today. In the meantime, however, they did negotiate how they’d split the revenue from the Greater Sunrise fields and signed the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) in 2006.
CMATS splits Greater Sunrise profits between Australia and East-Timor 50-50. This may seem fair at first glance, and is a definite improvement on the previous arrangement that saw an inexplicably staggering 82 percent of revenue given to Australia, and a measly 18 percent to East Timor. Considering that the fields actually lie predominantly on East Timor’s side of the median line, however, and that East Timor is a far less wealthy nation than Australia with a higher dependence on these resources, the ‘fairness’ of the treaty is extremely questionable.
Moreover, CMATS officially prohibits East Timor from raising the question of its unsettled maritime boundaries for 50 years: this puts at least a half-century waiting period on East Timor’s ability to consolidate its boundaries and get on with being a sovereign nation like everybody else, which is a big source of frustration for the small country and motivates this week’s protests.
The biggest backstabbing of this whole saga, though, lies in a remarkable example of spying orchestrated by our very own government.
In 2004, Australia commissioned a Queensland construction firm to renovate East Timor’s Prime Minister’s offices as an act of foreign aid. On the surface, this seems like a nice thing to do. That is, until ASIS (Australia’s intelligence agency) used the opportunity to bug the building’s meeting rooms with listening devices so they could spy on East Timorese officials during the negotiation process.
It’s one thing (though by no means the right thing) if this was done “in the national interest,” and in Australia’s interests alone. Waters are murky here, though; two Australian officials involved in the treaty negotiations later went on to secure work for Woodside, the leading corporate stakeholder. The mingling of corporate interests and the perceived injustice of the whole thing was what allegedly led Witness K, an ex-ASIS spy involved with the bugging, to expose what had gone on. In addition to the unquestionable immorality of it all, East Timor’s lawyers are making the case that Australia’s actions were in fact very much illegal, even under our own laws, because they go far outside ASIS’ proper functions.
What Happens Now?
East Timor’s focus is on renouncing the controversially procured CMATS treaty and, most importantly, reopening discussion with Australia to negotiate firm maritime boundaries. After waiting years in the hope of good faith negotiations with the Australian government, last year East Timor decided to pursue arbitration against Australia at the International Court of Justice in the Hague. This process is likely to take years, and even if CMATS is ruled invalid, Australia is not fully obliged to the UN Convention on the Law of the Sea or the median line rule.
The guarantee of a mutually beneficial resolution that respects East Timor’s status and sovereignty, therefore, rests on our government’s shoulders and its sense of fairness. Malcolm Turnbull, however, has rejected the prospect of formal talks and insists our treaties were conducted in good faith.
This needn’t be our country’s reaction to such an earnest grievance of our newest neighbour. An alternative way of addressing the issue has been nicely articulated by Joanne Wallis of ANU:
“A way for Australia to improve its relationship with Timor-Leste would be for us to comply with international law as set out in the UN Convention on the Law of the Sea… Australia is a very wealthy country with one of the highest standards of living in the world. Timor-Leste remains one of the world’s poorest countries where 37 percent of the population lives below the global poverty line… Only once [Australia meets its legal and moral obligations] will we ever have a truly free, fair and friendly relationship with one of our nearest neighbours.”
This cause has been taken up passionately by Xanana Gusmao, East Timor’s former Prime Minister, who appealed to the Australian public to put pressure on Canberra in the name of fairness in November last year.
Now, it seems, people are listening to his call for action. Protests will be held around Australia this week, and yesterday Tanya Plibersek declared that an official settlement of maritime borders with East Timor would be a part of Labor’s official election policy.
Until jurisdiction over the Timor Sea is settled, East Timor’s losses in the region are pitched at as much as $1 million a day. More importantly to Gusmao and activists, however, is the symbolic denial of true sovereignty that can only be resolved when Australia agrees to negotiate. At this point, we are only perpetuating a narrative of imperialism and foreign control that has loomed over East Timor for decades.
The right thing to do seems pretty straightforward. It is yet to be seen whether we take that path.
Feature image via Timor Sea Justice.
2. Message To Australia: ‘Hands Off Timor’s Oil’
HuffPost Australia | By Cayla Dengate Posted: 23/03/2016 16:22
Every day, more people lend their faces to a viral campaign against Australia.
We — the island nation with a ‘she’ll be right’ mentality — aren’t used to being on the receiving end of international discontent but day after day, Timorese people, mostly young, are using social media to send Australia a message:
‘Hands off Timor’s oil’.
The protests prompt the questions: When Australia’s been drawing oil from Timor since the 90s, why now? And more importantly, is it an unfair deal?
The answer may well be found in the Timor Sea, so far out that land can’t be seen, where an imaginary line has been drawn across the deep seabed.
This boundary is called the median line, tracing roughly halfway between Timor and Australia. This line would leave the region’s last known untapped oil field squarely in Timor’s purview called Greater Sunrise Oil Field.
It’s a line that’s not recognised by Australia.
Francez Suni, a Timorese student currently studying in Melbourne, told The Huffington Post Australia social media was allowing everyday people to speak to the world for the first time.
“Social media’s penetration in Timor is getting wider and wider especially among the youth, so a lot of our people have used especially Facebook as a platform to spread information because it is the fastest way for Timorese to get their stories across.”
This campaign’s not just a social media phenomenon — more than 1000 people protested at the Australian Embassy in the capital Dili on Tuesday — one of the largest protests since Timor won independence from Indonesia in 1999.
The protest was led by the man often described as the nation’s ‘hero of independence’ former president and prime minister Xanana Gusmao but it was the young people who flooded the streets. In Australia, concurrent protests happened in Sydney and Melbourne.
Deakin University professor of international politics Damien Kingsbury told The Huffington Post Australia it was a complex issue, but not a new one.
“This issue’s a bit of a slow burn – it’s been going on one way or another for about eight years,” Kingsbury said.
“This issue hasn’t ever gone away for the Timorese and about one year ago, the Timorese Government relaunched the Timor Sea Campaign to publicise what they regard as an unfair arrangement with Australia.”
Timor said it had lost AU$6.6 billion in royalties and tax revenue — some to private companies and royalties to the Australian Government — since independence. Kingsbury said money was key in Timor’s future stability, but that Australia wasn’t necessarily being unfair in its arrangement, which allocated 90 percent of profits to Timor.
“One of the reasons this issue is ramping up comes down to the fact that the oil fields in the Timor Sea are now starting to dry up,” Kingsbury said.
“One field is closing this year, another is set to close in the next two or three years and really, other than Greater Sunrise, that’s going to be the end of the known reserves for Timor.
“This is a problem for Timor because at the current rate of expenditure, it would run out of money in 12 years.”
The current expenditure is a little more than $1billion per year — mostly spent on infrastructure projects — and currently, Timor’s president is at odds with its parliament over the annual budget.
“The parliament’s trying to have the president impeached because he’s refusing to pass the budget, saying it’s too expensive, wasteful,” Kingsbury said.
So would the median line solve Timor’s woes by providing it with a viable reserve of oil? Well according to Kingsbury, not exactly.
“The price of LNG has bottomed out completely,” Kingsbury said.
“The potential revenue has dropped by about one third since peak oil prices.”
As well as that, Kingsbury said he was pessimistic Timor could persuade Australia to change its mind.
“Timor doesn’t really have the capacity to compel Australia to change its position. Labor has made it policy to recognise the median line, so I think their best chance Timor has is if Australia elects a Labor government.”
Suni told HuffPost Australia it was about more than access to a single oil field.
“The Timor Sea issue has spoiled the way we think and see Australia,” Suni said.
“It is heartbreaking for us, especially students like me, who throughout our period of study have been able to make friends with a lot of great Australians.
“We are extremely grateful for the enormous support we have been receiving from Australia.
“INTERFET, the Australian Army-led peace keeping force is always in our hearts — No Timorese would ever forget that. That is our sweetest memory about Australia, and I wish we could always think of Australia that way, the best and biggest friend we have.”
3. Re: Message To Australia: ‘Hands Off Timor’s Oil’
Damien Kingsbury (firstname.lastname@example.org)
To: email@example.com, ETAN
Dear ETAN friends,
This is to note that while this article is broadly correct, there’s a couple of inaccuracies. I noted that the annual budget has been approximately $1.5 billion, which has been (give or take) about $1 billion above sustainable expenditure. The 90% refers to the JPDA.
I also noted that Taur Matan Ruak was in dispute with the government over other issues beyond the budget.
I trust that if and when a Labor government is elected in Australia that it honors its commitment to ‘drawing the line’, and that Timor-Leste is then able to find a suitable resolution to the development of the Greater Sunrise field.
Professor Damien Kingsbury
Personal Chair, Professor of International Politics
Director, Masters of International and Community Development
School of Humanities and Social Sciences
Deakin University, Melbourne
4. Message To Australia: ‘Hands Off Timor’s Oil’
Show Australia that the world is watching. Tell “Australia: Hands Off Timor’s Oil!” Take action. Join the international online protest. Details here: http://bit.ly/timorsea.
5. Public Seminar – Maritime Boundaries in the Timor Sea: “Perspectives in International Law”
15 February 2016
Jointly hosted by Castan Centre for Human Rights, Monash University and Swinburne Institute of Technology, held at Monash Law School, Melbourne CBD
Presentation by H.E. Ambassador Abel Guterres on behalf of the Government of Timor-Leste
Distinguished Participants, Ladies and Gentlemen, I want to acknowledge the Traditional Custodians of the land and pay my respects to the elders Past and Present and Future on whose land we gather today. I want to thank the Castan Centre for Human Rights, Monash University and the Swinburne Institute of Technology for hosting this important seminar. I want to acknowledge the participation of International Law Experts Prof. Don Rothwell – ANU, Prof Don Anton – Griffith University and Dr I Made Andi Arsana – Gadja Mada University Indonesia.
Ladies and Gentlemen, for us the timing of today’s seminar on the delimitation of maritime boundaries cannot be better. This is because our Prime Minister, Dr. Rui Maria de Araújo has just sent his official letter to Prime Minister Malcolm Turnbull, to request just that – to begin negotiations in good faith on the delimitation of permanent boundaries.
My speech today is not necessarily focused on legal matters, more on politics, although as we all know, law and politics are always hard to deal with as completely separate matters. My speech is the telling of our story trying to settle our maritime boundaries with Australia, in plain and simple language, not finessed with diplomatic nuance.
Academics and lawyers characterise this matter as a dispute.
For Timor-Leste all we seek and have continually sought is to negotiate with Australia its permanent and sovereign maritime boundaries and so far the Australian government has not agreed to come to the negotiation table.
The primary goal for Timor-Leste is to achieve demarcation of maritime boundaries based on international law and we are requesting to enter into the next phase of negotiations on permanent maritime boundaries in the Timor Sea.
THE NEXT PHASE OF TIMOR SEA TREATY NEGOTIATIONS
The question of the delimitation of permanent maritime boundaries has always been on the table from the Timorese side. When the United Nations, represented by UNTAET (the United Nations Transitional Administration for East Timor) negotiated what became the current arrangement with Australia, the question of permanent boundaries was put firmly on the table.
Australia preferred, indeed insisted on a temporary arrangement. This temporary arrangement was a new one but one that is prima face modelled on Australia’s treaty with Indonesia, a treaty Timor-Leste regarded as done on an illegal basis and achieved at odds with international law.
The Timor Gap Treaty, which created the Zone of Cooperation (ZOC), was famously signed on an airplane flying over the zone, and celebrated by the two relevant ministers clinking champagne glasses, while the Timorese were being killed by the Indonesian military in genocidal proportions and lived in atrocious conditions.
During the period of the United Nations’ transition, Australia did all it could to shove that treaty at East Timor, to ensure that Timor-Leste had no option but to “agree to it”, just as we were being born as a sovereign State. The pressure from Australia was such that Foreign Minister Alexander Downer felt appropriate and necessary to remind the then Special Representative of the United Nations and Transitional Administrator of East Timor, the late Sergio Vieira de Mello, that “Australia could bring meltdown to East Timor if it so chose”.
As you can draw from this mood, it was a situation where the United Nations and the Timorese leaders could not sustain their position under Australian pressure. Lawyers might call this out as unconscionable conduct.
The desperation of Australia to force these treaties onto the Timorese leaders extended to the period of 2004 and 2007 when the CMATS (Certain Maritime Arrangements on the Timor Sea) was pushed through the Australian Parliament. Pushed through by the Government disrespecting at worst or bypassing at best, its own standards for treaty making.
The Parliamentary Standing Committee on Treaties that analyses treaties, was ignored, before CMATS was subjected to the deliberation of the Parliament. The then Foreign Minister Alexander Downer saw fit to make use of the executive powers of the government to bypass Parliamentary procedures. Mr. Downer argued that his move was to safeguard national interests because the Timorese were soon to go through an election. In giving this reason he invoked the ‘National Interest Exemption’.
CMATS was tabled before Parliament on the 6 February 2007. Mr. Downer announced the National Interest Exemption on 22 February 2007, with the treaty entering into force on 23 February 2007. He explained that he was invoking the National Interest Exemption because: (i) the treaty did not alter arrangements under the Sunrise IUA, which the Committee had already reviewed and supported, (ii) CMATS had been publicly available since January 2006, and (iii) Timor-Leste had indicated to the Australian Government that it wished to move ahead expeditiously to bring CMATS into force, with an opportunity to do so prior to its presidential and parliamentary elections. Mr. Downer explained that, given the importance of the treaty to Australia and Timor-Leste, Australia did not wish to allow an opportunity to pass to finalize the treaty, and it was uncertain when such an opportunity would arise after the Timor-Leste elections. This process was quite interesting, seeing a rarely used exemption invoked for CMATS.
At the time, there was considerable criticism of Mr. Downer’s decision to invoke the exemption, given that the treaty had been signed a year prior to being tabled before Parliament, and the somewhat unclear explanation of Timor’s political circumstances on the decision to expedite CMATS’ entry into force.
In his letter to Dr Andrew Southcott MP, Mr. Downer wrote “I have decided to invoke national interest exemption and proceed with taking binding treaty action for the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) Treaty even though twenty sitting days have not elapsed since it was tabled”. Mr. Downer went further adding “The CMATS Treaty would also suspend maritime claims for a significant period.” This reference is to a moratorium of fifty years on maritime boundary matters.
Now, we can look back and see that this process is another interesting aspect of the story behind CMATS.
We Timorese believe that had good faith been a feature of our interactions we would have a chance to explore a pipeline to our shores, in the same way that Australia had one to theirs with great benefits ensuing to the Northern Territory and Australian economy. That was not to be. The good faith was blown up firstly by Australia not assisting at all in this endeavour to have a pipeline to our shores or even consider it, and secondly when we had confirmed to us in the second part of 2012 that we were not only spied on during the treaty negotiation, but that Australian agents had entered our government offices to plant listening devices under the guise of an aid project. This was and is still unacceptable.
Thirdly, we believed that Australia would enter into negotiations on the delimitation of maritime boundaries, in the future, having established some temporary arrangements.
Bearing in mind this moratorium clause to quote Mr. Downer, the expectation was that Timor-Leste, even after fourteen years of independence, as a sovereign country and member of the United Nations, still cannot discuss its sovereign rights to access to its natural resources allowed for by international law. This is just not right. And the Government of Timor-Leste is ready and committed to change it.
Adding salt to the wound, on the 22nd of March 2002, two months before Timor-Leste was to become an independent and sovereign State, and a member of the United Nations, Australia saw fit to withdraw itself from the jurisdiction of the ICJ and ITLOS under UNCLOS, in relation to [and I quote] “any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”.
ADHERENCE TO INTERNATIONAL LAW
Nevertheless, both the Timor Sea Treaty and CMATS clearly indicate the intention of the parties not to hinder the right to negotiate maritime boundaries in the future; and that such negotiation will be under international law provisions, UNCLOS being one such provision. I hope our experts, academics and supporters today would continue to articulate this for the benefit of a healthy debate and discussion on this important issue.
In this regard, Timor-Leste is encouraged by the recent statements of Prime Minister Malcolm Turnbull concerning international law. Reflecting upon the South China Sea, Mr. Turnbull advocated that the United States ratify the United Nations Convention on the Law of the Sea because “non-ratification diminishes American leadership where it is needed most”. This correlation is of vital importance.
Adhering to the rules of international law and leadership in international affairs are intertwined. Reflecting upon the dispute between Timor-Leste and Australia, the fact that Australia withdrew from relevant provisions of UNCLOS to protect itself from dealing specifically with maritime boundary delimitation matters that can only be applicable to Timor-Leste, does not conform to the behaviour of a country that wants to also exert its international rules based leadership in our region and beyond. In pursuit of this we observe that Australia is seeking a seat on the United Nations Human Rights Commission.
And this is why Timor-Leste welcomed the 2015 resolution of the ALP National Conference to settle permanent maritime boundaries with Timor-Leste based on international law. This resolution, approved unanimously, demonstrated a courageous policy stand by the ALP because of its readiness to put right a wrong and to seriously review the reservations that Australia, under the Coalition government and Mr. Downer, registered in the United Nations to deny any possibility of Timor-Leste taking the maritime boundary dispute to the ICJ or ITLOS.
If you consider those reservations combined with Australia’s current refusal to negotiate maritime boundaries with Timor-Leste, you can see the effect. It has rendered Timor-Leste almost powerless. Almost powerless to exert any pressure on Australia to come to the negotiating table in good faith to reach a maritime boundary delimitation that is fair, equitable and permanent, as provided for by applicable international law.
The language of the ALP resolution is what we can call a show of leadership and the party’s commitment to find a real solution. The commitment to maintaining a positive relationship with the people of Timor-Leste is certainly echoing what most Australians want. Entering into structured engagement with Timor-Leste to negotiate the settlement of maritime boundaries between both countries reflects what is perceived by Timor-Leste as an act of good faith, particularly when one reaffirms the duty to commit to a rules-based international system and the readiness to review its reservations to the United Nations Convention on Law of the Sea (UNCLOS) to the settlement of maritime boundary disputes through the ICJ and the International Tribunal of the Law of the Sea (ITLOS).
The review promised in that resolution was obviously undertaken forensically with the party that is the alternative government now announcing it will submit itself to the jurisdiction of the judicial umpires of the ICJ and ITLOS, or another mutually agreed forum, to settle permanent maritime boundaries with Timor-Leste if negotiations fail to reach an agreement. This is the right and sensible approach.
We sincerely welcome this approach as one, that is “very Australian”, a phrase we have heard Prime Minister Turnbull use on very serious matters. He said it recently in his most welcome speech on domestic violence. A serious and challenging matter that besets and blights both our societies.
The good will and strong adherence to international norms, which enhances Australia’s reputation as a good international citizen, was well articulated by the Hon Tanya Plibersek, the Deputy Opposition Leader and Shadow Minister for Foreign Affairs, in her address to the Press Club last week and in subsequent media interviews. In an interview with Lateline, Shadow Minister Plibersek said:
“I’m responding to the fact that for decades we haven’t had a proper border with one of our nearest neighbours. I’m responding to that in a way that is acceptable to the Government of East Timor and most importantly, also in Australia’s national interest.
“The ongoing uncertainly about where the border lies between our two nations is not in our national interest and it’s also not good for us internationally, not good for our reputation. We are a country that has benefited a great deal through the rule of law internationally – the fact that we were able to take Japan to the ICJ and win the whaling case was because we are party to conventions including UNCLOS – United Nations Convention on Law of the Sea – that allow us to do that.”
We cannot agree more. Entering into negotiations with Timor-Leste now to reach an agreement, in good faith, on maritime boundaries is, indeed, not only the right thing to do but also in Australia’s national interest.
THE CASE OF ESPIONAGE IN THE HAGUE
This seminar also intended to look into “current court cases” and I know that there has been a lot of public attention given to the espionage case. In 2014, Prime Minister the Hon Tony Abbott and his foreign minister the Hon Julie Bishop asked our then Prime Minister Mr. Xanana Gusmão to drop both cases. The cases being the raid of lawyer Bernard Collaery’s office in Canberra confiscating documents related to the espionage case that culminated in the matter being before the ICJ, as well the espionage case arbitration.
The idea was to begin consultations with Timor-Leste, they said. We said talks.
Again, Timor-Leste, acting in good faith acceded to that request, not dropping the cases but agreeing to suspend them for a period of six months. We decided it would give us time to listen to what Canberra had to say about the request of Timor-Leste to begin maritime boundary negotiations. At the end of the six months suspension period, Canberra had nothing new to say, except its readiness to dialogue on the basis of the current arrangement, as if the current arrangement is a biblical arrangement which one cannot change.
Australia always says, speaking for itself, that they are happy with the current arrangements. Australia says the same speaking for Timor-Leste too! Well yes, we are sure they are, but the current arrangements are clearly not working and bring into question serious matters of legality and indeed morality.
Regarding the case in ICJ it reached a conclusion when Australia decided to return all the documents, thus acknowledging the sovereign rights of Timor-Leste and its proprietary rights in the seized documents. The Australian Attorney-General Mr. Brandis acknowledged, in writing, the obligation of Australia not to interfere with the communications between Timor-Leste and its lawyers.
So this case has concluded.
On the espionage case, Timor-Leste has informed the Tribunal that it is willing to continue with the case, which will probably last for another year until its conclusion. The Australian government has, it seems, talked to the witness known as ‘witness K’, taken away this person’s passport and until now continues to refuse to return it. It seems that the Australian government refuses to allow the witness to make themselves available to the Tribunal, in person, in order to contribute towards the due process of the Tribunal. The dilemma for the Australian government is that it actively engaged in this legal process, has been following all the procedures, has replied to Timor-Leste’s submission and has access to the affidavit signed by the witness. In addition, the Tribunal has formerly requested Australia and Timor-Leste to cooperate in order to allow the Tribunal access to the witness. Having ‘talked’ to the witness, the onus is now with the Australian government to allow the Tribunal unfettered access to the witness.
The Australian government must cooperate with the Tribunal, and not bypass the natural course of justice. Again, I am no expert in legal procedures and international law, so I leave this issue here.
What I see as important to remember is that, in this case, Timor-Leste did not take the case to the international tribunal based on statements made by witnesses from other countries. Timor-Leste was informed about this espionage case by one of Australia’s own intelligence veterans and Timor-Leste being the victim has the right to pursue, if it so chooses, redress and the truth, which it did. The reason Timor-Leste opted for an international arbitration tribunal in dealing with this sensitive matter is also relevant. Being such a sensitive matter, it is dealt with in a private hearing where the parties cannot disclose the details of the proceedings. In our view this is proper and reasonable.
IT’S TIME TO DRAW THE LINE
It is now high time to draw the line, as one of Australia’s public intellectuals Father Frank Brennan has written in his works on this matter. One reason is that this is not the first time Timor-Leste calls upon Australia to draw the line. Going back in time, Australia and Indonesia recognized the ‘gap’ as belonging to Timor-Leste. Then Portuguese Timor was asked by Australia to join the negotiation on maritime boundaries, for the 1972 Seabed Boundary Agreement to begin with, but Portugal refused knowing that the law of the sea was evolving and becoming even less favorable to Australia’s position. And Portugal was right. They objected to the spurious continental shelf claim.
More recently in 2004, a United States Congressmen wrote to then Prime Minister John Howard appealing to Australia to negotiate maritime boundaries with Timor-Leste, under international law and in good faith. Even during the negotiations of the Timor Sea Treaty, Timor-Leste discussed the need for permanent maritime boundaries.
Professor Gillian Triggs and Dean Bialek wrote, in their paper “The New Timor Sea treaty and Interim Arrangements for Joint Development of Petroleum Resources of the Timor Gap”, published in 2003 by the University of Melbourne, that “Concerns that ratification of the Timor Sea Treaty will be interpreted as acceptance of the coordinates have prompted calls for East Timor to negotiate new permanent boundaries before it agrees to ratify”.
The National Parliament of Timor-Leste has also adopted legislation on maritime boundaries, including the Exclusive Economic Zone (EEZ), a middle line, closing the gap, so that Timor-Leste has what rightfully belongs to it, an EEZ.
I began by pointing out that we are ready and would want to enter the post phase of the Timor Sea Treaty and CMATS negotiations. I also stated that both treaties have a clear “without prejudice” clause to protect the rights and positions of each party to negotiate maritime boundaries in due course. It is time to get back to the negotiation table to discuss, in good faith and within the realms of international law, maritime boundaries between our two friendly nations. After all, Australia has settled its maritime boundaries with its other five neighbours. Only less than two percent remains, which is with its sixth neighbour – Timor-Leste. It is time.
Bearing in mind our common history, including the active solidarity the Timorese showed to Australia during the Second World War, our call for maritime boundaries delimitation should fall on a receptive, friendly ear in Canberra. After all, about 50,000 (fifty thousand) Timorese died for supporting the Australian commandos in WWII, they died in defence of the sovereignty of Australia.
Now, when the Timorese call for maritime boundary negotiations with Australia, it is calling on Australia to help finally define the Timorese people’s sovereignty, to conclude a quarter of century struggle for our national independence and sovereignty of the new state.
Australia and Timor-Leste are loyal friends and allies with a bond of friendship forged in times of war and misery, tested in the rugged mountain jungles of Timor-Leste during WWII. The Timorese villagers and the trusted Criados never betrayed their Aussie mates and ensured that they stayed alive to come back home to their loved ones in Australia. Please Australia; it is time to Right the Wrong in the Timor Sea and give your close friends, next door – a fair go!
This speech can be downloaded from http://www.laohamutuk.org/Oil/Boundary/2016/GuterresMelbourne15Feb2016.pdf
For background, history and current events relating to Timor-Leste’s maritime boundary rights, including other presentations to the two Melbourne seminars this week, see http://www.laohamutuk.org/Oil/Boundary/CMATSindex.htm
6. Lowy Interpreter
Timor Sea boundary dispute: Australia is out of step with international best practice
9 March 2016 1:09PM
In a series of recent posts on The Interpreter ( here, here and here), Stephen Grenville has suggested that if Australia agreed to enter into maritime boundary negotiations with Timor-Leste and, if necessary, allow an international umpire to determine a maritime boundary in the Timor Sea, Timor-Leste would somehow be worse off.
This is a strange assertion given the facts.
The 1982 United Nations Convention on the Law of the Sea gives every coastal state a right to 200 nautical mile Exclusive Economic Zone (EEZ) in which they have full sovereignty from the water surface to under the seabed. Australia signed this Convention in 1994.
Where EEZs overlap or are adjacent, international courts and tribunals have developed a process that uses the equidistant (or median) line as the starting point, and then adjusts the line to take into account ‘relevant circumstances’ which modify the line such as the location of minor islands or the concavity of coastlines.
The existence or otherwise of a continental shelf as claimed by Australia is totally irrelevant to the EEZ boundary delimitation in the Timor Sea.
Timor-Leste is confident that this internationally accepted method for delimiting maritime boundaries would result in the adjustment of the eastern lateral boundary in Timor-Leste’s favour, placing the entire Greater Sunrise project in Timor-Leste’s territory.
Unlike Australia, Timor-Leste is prepared to have this assertion tested in an international court or tribunal and allow an independent umpire to decide where the maritime boundaries should lie.
Timor-Leste is also confident that an international court or tribunal applying these principles would base a maritime boundary between Timor-Leste and Australia essentially on the median line.
However, Timor-Leste is unable have an independent umpire decide a maritime border with Australia because of a decision in March 2002 by Australian’s then Foreign Minister Alexander Downer to pull Australia out of the compulsory jurisdiction of international courts and tribunals in relation to maritime boundary matters. This decision was made just two months before Timor-Leste finally achieved its independence.
This decision strongly suggests that Australia does not have the same level of confidence in its legal position that Timor-Leste has concerning its own.
Australia’s reliance on these temporary resource sharing arrangements was recently confirmed by Prime Minister Malcolm Turnbull when he rejected a request from the Prime Minister of Timor-Leste, Dr Rui de Araújo to commence negotiations to settle a permanent maritime border in the Timor Sea.
Australia has negotiated a maritime boundary with all our other neighbours, recognising that administrative certainty in regard to defence, immigration, fisheries and energy resources is in our national interest, and that of our neighbours. For example, in July 2004 Australia and New Zealand signed a maritime boundary treaty negotiated according to the principles set out in the UN Convention on the Law of the Sea. In a joint statement issued at the time, the Australian Foreign Minister Alexander Downer and New Zealand Foreign Minister Phil Goff said the Treaty
…provides each of us with certainty of jurisdiction over both the water column and seabed, including fisheries and petroleum resources, as well as in relation to protecting and preserving the marine environment and undertaking marine scientific research. The Treaty will benefit our fisheries and extractive industries, and greatly reduces the potential for future disputes between us.
At the same time, in bi-lateral talks in Dili, Australia was refusing to negotiate a maritime boundary with Timor-Leste according to the principles set out in the UN Convention on the Law of the Sea.
Timor-Leste’s position was that the border should be the median line and that taking into account ‘relevant circumstances’ the laterals should be pushed further east and west.
Australia wanted to continue the temporary resource sharing arrangements negotiated in 1989 when Indonesia was still illegally occupying Timor-Leste.
It was during these negotiations that Foreign Minister Downer allegedly authorised Australian spies to secretly record the Timor-Leste negotiating team.
Two years later in 2006, Australia and Timor-Leste signed the Certain Maritime Arrangements in the Timor Sea treaty (CMATS) that Mr Grenville enthusiastically defends.
It will come as no surprise that Timor-Leste did not succeed in getting Australia to agree to an equitable, median line based maritime boundary, or movement on the laterals. Australia’s concession to Timor-Leste in the CMATS Treaty was additional revenue from the Greater Sunrise field, which in fact lies 100% on Timor-Leste’s side of the median line. Australia’s big win was a 50 year ban on even talking about permanent maritime boundaries in the Timor Sea.
Mr Grenville rightly asks what aspects of the CMATS outcome would have been different if Australia had refrained from the ‘bumbling stupidity’ of the alleged spying exercise.
That’s open to debate, but I suggest we may have had a median line border in the Timor Sea between Australia and Timor-Leste, and Greater Sunrise would be generating much needed revenue for Timor-Leste and value for Woodside shareholders.
There are two other highly relevant factors not covered by Mr Grenville.
Firstly, because Greater Sunrise had not commenced development six years after CMATS was signed, Timor-Leste and Australia have the option of terminating CMATS and the Timor Sea treaty. Timor-Leste has made it very clear that its preference is to negotiate permanent maritime boundaries before considering taking such a step.
Secondly, Mr Grenville, and most of the Australia media, have studiously avoided acknowledging that Indonesia has entered into good faith maritime boundary negotiations with Timor-Leste.
Perhaps because this fact, more than anything else, highlights how Australia’s refusal to negotiate is out of step with international practice.
Steve Bracks is a former Premier of Victoria and adviser to the Timor-Leste Government
7. MAR 8, 2014
The Hague rules on Timor-Leste material seized in ASIO raids
With vast oil and gas reserves at stake, did the federal government use its espionage agencies to foil Timor-Leste’s case against it in The Hague?
When the doorbell rang about 9.30am at 5 Brockman Street, Narrabundah, in suburban Canberra, Chloe Preston was starting her day at work as a legal clerk. She opened the door of the home that doubles as a law office, and was confronted by a team of national intelligence agents, who began combing the building. They seized papers, an iPhone, a laptop and a USB.
The 15 or so agents, mostly from Australia’s domestic spy agency, the Australian Security Intelligence Organisation, as well as some from the Australian Federal Police, did not say what they were seeking or why. They showed Preston a search warrant, which included large sections that were blacked out. In any case, she later admitted, she was too intimidated to read it and the agents refused to give her a copy, saying it would be a breach of national security.
But Bernard Collaery, the lawyer who employed Preston, and lived and worked at the house, knew exactly what the agents were looking for.
Collaery is representing Timor-Leste in its effort to invalidate a $40 billion oil and gas treaty with Australia signed in 2006. He has potentially explosive evidence from a former Australian spy, who allegedly admitted to extensive espionage by Australia as the two nations negotiated the division of an underwater oil and gas field.
As the December 3 search in Brockman Street proceeded it lasted until about 4pm a separate group of agents were swooping on the former spy, seizing his passport and preventing him from travelling to The Hague to testify at an arbitration case launched by Timor-Leste to overturn the treaty on the division of the fuel reserves.
Australia is accused of sending spies disguised as aid workers to plant bugs inside holes in the walls of government offices in Dili almost a decade ago, at a time when the small coastal city was awash with Australian troops, government officials and members of aid agencies.
This was just two years after the impoverished nation declared its statehood, in May 2002, following a battle led by Australian troops to secure independence from Indonesia. The espionage operation apparently allowed Australia to monitor discussions by Timorese officials, both in their cabinet room and in a negotiating room specially designed for the treaty talks.
Details of the spying were stored in Collaery’s home office, along with reams of other material for the arbitration case in The Hague. As the agents conducting the ASIO search were no doubt aware, Collaery was in Europe for a hearing at the time.
But the seizing of data from Brockman Street in December resulted in a separate international dispute between Australia and Timor-Leste, which landed in the International Court of Justice. It led to a ruling this week that involved the somewhat unusual order to Attorney-General George Brandis, who oversees ASIO and issued the Brockman Street search warrant, to not inspect the seized documents and to keep them under seal. The court also ruled that Australia must not interfere in any way in communications between Timor-Leste and its lawyers.
Brandis, who has undertaken to inform the court if he ever needs to read the documents, says he was pleased that Australia was not ordered to return the seized material.
“These orders will, of course, be complied with,” he says. “This is a good outcome for Australia.”
Observers of the long-running dispute have pointed to the December operation as confirmation that Australia did indeed spy on Timor-Leste, a nation whose economic future largely depends on the revenues from the reserves beneath the Timor Sea. The elaborate spying operation was allegedly conducted by the Australian Secret Intelligence Service, Australia’s foreign intelligence agency.
Collaery was in Europe this week for the ruling and told The Saturday Paper he didn’t want to comment on the December search as it was now before the court. Prior to the latest hearings he was less reserved, describing the raids on him and the former spy as crass and an attempt to block evidence and intimidate our witness.
The opposition has labelled Brandis inept, suggesting the raids were poorly timed, putting undue attention on Australia’s alleged espionage on the eve of the arbitration hearings. Brandis has denied it, telling Parliament in December the claim was wild and injudicious.
“The search warrants were issued, on the advice and at the request of ASIO, to protect Australia’s national security,” he says.
Conflicts of interest?
The espionage in Dili is alleged to have been ordered in 2004 by the then head of ASIS, David Irvine. It was Irvine again, as head of ASIO, who asked Brandis to approve the December raids nine years later. But Irvine is far from the only figure to have overlapping roles in an unfolding saga that has proved embarrassing to Australia and raised concerns about the uses of its intelligence agencies.
It is believed that the former spy who blew the whistle, a director of technical operations at ASIS, had become angry that two of the people intimately involved in the treaty talks, Ashton Calvert, then head of the Department of Foreign Affairs and Trade, and Alexander Downer, then the foreign minister overseeing ASIS both subsequently secured work for Woodside Petroleum, the Australian company leading the venture to exploit the reserves.
The late Calvert, a veteran diplomat, became a director of Woodside and Rio Tinto after retiring from the diplomatic corps in 2005. Downer told The Saturday Paper he only gave Woodside advice for several months during 2011 and 2012, and he strenuously denied the job was a payoff for his work in securing the treaty.
This was years later they [Woodside] wanted advice on East Timor’s position, he says. There was no conflict of interest. I knew about the issue because I was a minister. Did Woodside say to me during the negotiations, If you get this treaty up, we will give you a job in the future? Of course they didn’t.
Downer wouldn’t comment on whether Australia spied on Timor-Leste, but says of the alleged whistleblower: “ I don’t know who he is. I don’t know what his issues are. I don’t care what he thinks. You didn’t have to spy on East Timor to find out what their position is. This is all complete hogwash.”
Greater Sunrise maritime treaty unfair
The oil and gas field treaty has been a long-running source of friction between the two nations. It included a 50-50 split of the revenues from the Greater Sunrise fields, which are closer to Timor-Leste. They would effectively belong wholly to Dili if a midway point between the nations were used as the maritime boundary, as is the more common practice in international law.
Clinton Fernandes, a University of NSW academic at the Australian Defence Force Academy, says the treaty was blatantly unfair and should be renegotiated. “Australia has shared the revenues disproportionately. The Greater Sunrise fields are twice as close to Timor as Australia. It is not fair. How is Australia getting any of these resources? We should be getting none.”
Fernandes was further critical of the actions of Australia’s spy agencies. “This ASIS agent believed that the espionage services were not being used as they should have been used. The episode is undoing all the goodwill that the Australian Diggers did in 1999.”
But the Howard government, which signed off on the treaty in 2006, always insisted the deal was a generous compromise. It argued that Australia would have received far more of the revenues under borders that it agreed with Indonesia, the previous governors of Timor-Leste.
Following long-simmering claims about Australia’s espionage operations in Dili, Timor-Leste launched a case last April to have the treaty invalidated in the Permanent Court of Arbitration, in The Hague, claiming that the spying rendered the deal unlawful. The case will ultimately decide the fate of the $40 billion reserves and the alleged spying by Australia could ultimately lead to the treaty being thrown out.
An expert on international law and the law of the sea, Donald Rothwell, of the Australian National University, says Australia is likely to challenge the jurisdiction of the court to hear the case. The government will argue that the dispute mechanism Timor-Leste is relying upon stems from an earlier 2002 treaty, which did not include Greater Sunrise.
“Whether that mechanism extends to the 2006 treaty and the way in which it may have been negotiated is a live issue that the tribunal will need to consider,” Rothwell says. “If the case proceeds,” he says, “Australia would have a hard time winning because there is a longstanding convention that countries must conduct treaty talks in good faith.”
If espionage is proven, that would be a strong argument to show that a treaty ought to be invalidated. Covert intelligence operations such as those being suggested would not be taken as a state conducting itself in good faith.
Nonetheless, Timor-Leste may find it harder to prove its case in The Hague if its star witness remains stuck in Canberra without a passport.
This article was first published in the print edition of The Saturday Paper on Mar 8, 2014 as “Spies argue over Downer’s hogwash”.