When Malcolm Turnbull became prime minister six months ago, our Timorese neighbours thought there might be an opportunity to draw a line on the past and to kick start the negotiation of a permanent maritime boundary between Australia and Timor-Leste. For the moment, they find themselves sadly mistaken.
Rui Maria de Araujo, the fairly new prime minister of Timor-Leste, wrote to our very new prime minister Malcolm Turnbull inviting him to turn a new leaf in the Australia-Timor relationship. It was not to be.
However the Timorese should not lose heart. They are well used to winning the hearts and minds of Australians even when Australian political leaders appear to be tone deaf to their pleas. This time they have convinced the Labor Party about the justice of their cause, and there is every chance that the Australian community will rally behind them after the federal election.
Behind the scenes, there is still plenty of legal intrigue about Australia's 2004 bugging of the Timor cabinet offices during the negotiation of CMATS, the most recent treaty delaying the negotiation of a permanent maritime boundary.
Australia has refused to issue a passport to the ex-ASIS officer, 'Witness K', who was involved in the bugging and who is happy to give evidence for the Timorese before an international tribunal. It would be best for both sides if the neighbour's dirty laundry were not put on public display.
Under CMATS, the two countries agreed to put the negotiation of a permanent maritime boundary on hold for up to 50 years. The hope was that a business plan for the exploitation of the Greater Sunrise oil and gas deposit in the contested Timor Sea could be finalised within six years and the mining completed before the need to negotiate a maritime boundary.
This was not to be. It is now nine years since CMATS came into effect and there is still no prospect of an agreed business plan.
"Turnbull will have to stop preaching on the South China Sea if he is not prepared to act in the Timor Sea."
The Timorese have a sense of deja vu with Australian politics. Back in 2002, the Howard Liberal-National Party Government decided to withdraw from the jurisdiction of the International Court of Justice in relation to the determination of maritime boundaries. The Labor Party in opposition was not able to commit to a reversal of that decision.
When Howard's Foreign Minister Alexander Downer then rushed the CMATS treaty through the parliamentary review process cutting corners with indecent haste, the Labor Party made no commitment to review the treaty when elected to government.
Labor prime ministers Gillard and Rudd never committed to negotiating a maritime boundary nor to resubmitting to the jurisdiction of the International Court of Justice.
At last year's ALP National Conference, the Timorese and their supporters had a partial win, breaking the bipartisan Australian consensus on delaying the negotiation of a maritime boundary. The ALP party platform was amended to read:
In Government, Labor will enter into structured engagement with Timor-Leste to negotiate the settlement of maritime boundaries between our two countries. Labor reaffirms our commitment to a rules-based international system, underpinned by a philosophy of multilateralism and institutions like the International Court of Justice (ICJ).
In light of this, in Government Labor will 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).
This was only a partial win because though there was a fresh commitment to commencing negotiations for a permanent maritime boundary, the further commitment was only to review the reservations to UNCLOS first put in place by Alexander Downer.
On 18 January, Turnbull went to Washington and lectured the Americans about the virtues of UNCLOS and the desirability of the Americans and the Chinese subjecting themselves to international law.
Referring to the rising tensions in the South China Sea, Turnbull told his audience that 'unilateral actions are in nobody's interest. They are a threat to the peace and good order of the region on which the economic growth and national security of all our neighbours depend. These differences should be resolved by international law.'
Obviously he had not considered Australia's long term stand on the Timor Sea.
The real breakthrough for the Timorese came when Tanya Plibersek, the Deputy Leader of the Opposition and the Shadow Minister for Foreign Affairs, told the National Press Club on 10 February:
If we want to insist that other nations play by the rules, we also need to adhere to them. The maritime boundary dispute has poisoned our relations with our newest neighbour. This must change for their sake and for ours.
A Shorten Labor Government will redouble our efforts to conclude good faith negotiations with Timor Leste to settle the maritime boundaries between our two countries. If we are not successful in negotiating a settlement with our neighbour, we are prepared to submit ourselves to international adjudication or arbitration.
That night, speaking on ABC Lateline, she told Tony Jones that Labor was now committed not just to kick-starting good faith negotiations for a permanent maritime boundary but also that 'if we couldn't come to a resolution [we will] submit ourselves to international adjudication or arbitration'.
She had communicated this advice to Xanana Gusmao the previous day and 'he was very pleased to hear that'.
Four things have become clearer since Australia was taken to the cleaners by Timor in the International Court of Justice in 2014:
A commitment by Australia and Timor-Leste to negotiate a maritime boundary would be no matter of concern to Indonesia.
The situation in the South China Sea could well be improved (and definitely not worsened) were Australia to commit to the negotiation of a maritime boundary with Timor Leste.
The CMATS Treaty has run its course. It has not achieved its primary objective which was the facilitation of the immediate development of Sunrise. It is now an irritant.
The espionage case and the refusal of a passport for Witness K will be an ongoing sore in the relationship unless it be in the interests of both parties to discontinue all such proceedings.
Were Labor to win the forthcoming federal election, there would be no reason to delay any further the negotiation of a maritime boundary. If on the other hand, Turnbull is returned with a mandate in his own right, he should come to see that Australian values and sound political principles support the need for his government to draw the line on past attempts to foreclose on boundary negotiations.
Given the ALP change and his own commitment to innovation and bold, clear thinking, Turnbull is unlikely to pledge his government to a further 41-year stand-off with Timor on the negotiation of a maritime boundary. Decent Australians and Timorese expect a change. Turnbull will have to stop preaching on the South China Sea if he is not prepared to act in the Timor Sea.
Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture.
Main image: Shutterstock
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21 March 2016
Great article Frank, thank you once again. This week marks the anniversary of the Australian pull out from the international umpire in 2002, just two months before Timorese independence, making it so much more difficult for them to achieve a just settlement. A protest in Sydney on Wednesday 23rd will take the form of a series of banners informing people of the lack of a border between our two nations. Yes, folks, there is no border. Hilarious, when you think of all the angst about 'border protection'. Melbourne will be having a rally on Thursday 24th.
21 March 2016
You are so right Frank, decent Australians do expect a change. It is a shame on us that our relationship with the Timorese is not a priority.
21 March 2016
Thank you Frank for raising some hope for a just solution to this issue. As for politicians actually following through on their commitments I must confess to being a sceptic. There have been few decisions made by Australian governments in my lifetime that do not smack of self interest.
21 March 2016
Thanks Frank, for reminding us of this significant issue in our election year. And thanks Susan for your ongoing commitment to justice for our near neighbour.
21 March 2016
There are plenty of international eyes on Australia's greed vis-a-vis Timor. This week the U.S.-based East Timor and Indonesia Action Network is coordinating an online protest in conjunction with the physical demonstrations in Dil, Australia and elsewhere. See here for details. http://bit.ly/timorsea
22 March 2016
Great Article Frank. Keep on being the moral 'thorn' in the side of our politicians, like the rest of us need to be!
22 March 2016
Witness K must be allowed to present evidence. If not then a Labor MP must interview him,, say ex AG Dreyfus, and then tell it to the House
24 March 2016
Another piece of evidence that the government hasn't changed, only the shopfront? And if Turnbull wins the election but only just, will those who shifted their support from Abbott to Turnbull simply shift it back again? A vote for the coalition is looking more and more like a vote for the ideological right irrespective of who its leader happens to be.
Andrew (Andy) Alcock
27 March 2016
This is a very good article. While it is good that the ALP is finally showing some justice towards our WW2 East Timorese allies, we must not forget that for 24 years it supported the fascist Indonesian brutal takeover of East Timor. The only political parties on this issue are the Greens and the left. We need to ensure that Australia stops stealing Timor-Leste's oil and gas, but we need to be changing he relationship with Indonesia because its military is still continuing to commit genocide in West Papua and human rights abuses in Indonesia and Acheh. This, of course means that we need to question our relationship with the US. After all, it was the CIA that assisted the Indonesian military (TNI) to overthrow a democratic Indonesian government to usher in the brutal Suharto regime. Indonesia is still a client state of the US and supports the TNI which is basically the largest terrorist organisation in our region. If we really want peace in our region, more efforts must be made to bring the war criminals in the TNI to justice and to control its crimes against humanity in our region
Frank Brennan SJ
14 April 2016
On 11 April 2016, the Government of Timor-Leste issued this statement:
Timor-Leste today launched compulsory conciliation proceedings under the United Nations Convention on
the Law of the Sea (UNCLOS ), with the aim of concluding an agreement with Australia on permanent
The conciliation procedure engages Australia in a formal process conducted by an independent panel of
experts, known as the conciliation commission.
While there are temporary resource-sharing arrangements in the Timor Sea, there are currently no
permanent maritime boundaries between the two countries. The Australian Government withdrew from the
binding dispute settlement procedures under UNCLOS and the International Court of Justice in 2002, two
months before Timor-Leste’s restoration of independence, limiting Timor-Leste’s means to enforce its rights
under international law.
Successive Australian Governments have also repeatedly refused to negotiate permanent maritime
boundaries and therefore compulsory conciliation is the only avenue available to bring Australia to the
Timor-Leste’s Prime Minister, Dr. Rui Maria de Araújo said “establishing permanent maritime boundaries is a
matter of national priority for Timor-Leste, as the final step in realising our sovereignty as an independent
“Under international law, Australia is obliged to negotiate permanent maritime boundaries with Timor-Leste
but it has refused to do so, despite all our invitations. This has left us with only one option,” he said. “This
process allows for a commission to assist our two countries to reach an amicable solution on permanent
“All Timor-Leste is seeking is a fair and equitable solution and importantly, what we are entitled to under
international law,” he said.
During his recent visit to Timor-Leste, the Indonesian President, His Excellency, Joko Widodo together with
Timor-Leste's Prime Minister reaffirmed their commitment to sit down as neighbours and negotiate
permanent maritime boundaries in accordance with international law.