Another win for 'David' Timor against 'Goliath' Australia

19 Comments

 

David Timor has once again scored a win against Goliath Australia in the international legal forum. Last time it was in the International Court of Justice which took strong exception to Australia's raiding of the office of a lawyer involved in the preparation of Timor Leste's case, though admittedly Australia's one ad hoc judge did dissent on key points from the other 15 judges!

East Timorese childrenThis time it was before a five-member Conciliation Commission convened under the auspices of the Permanent Court of Arbitration. Timor had asked for compulsory conciliation seeking to advance its demand that Australia come to the table and commence the negotiation of maritime boundaries. Australia raised six objections to the conciliation. All six objections were rejected unanimously by the commission.

Two of the commissioners were nominated directly by Australia. One of those commissioners was Dr Rosalie Balkin who had been a highly respected Assistant Secretary in the Australian Attorney-General's Department. She had been in charge of the Public International Law Branch in the Office of International Law.

Balkin's involvement is very significant in light of the long entrenched Canberra bureaucratic mindset which has informed governments of both political persuasions on Timor issues, urging them to yield no ground when it comes to boundary negotiations.

Responding to the commission's findings, Attorney General George Brandis and Foreign Minister Julie Bishop on Tuesday regurgitated the long repeated Canberra mantra: 'The current treaty arrangements between Australia and Timor-Leste have been hugely beneficial to Timor-Leste and have supported the accumulation of a $16 billion sovereign wealth fund ...

'We have a strong interest in Timor-Leste's stability and growing prosperity, and in providing a stable and transparent framework for investment in the Timor Sea.'

They have no idea just how patronising this sounds in Dili each time Australia gets defeated in the international forum. They may well be right. But it's not their call. Timor-Leste is now an independent sovereign nation and its leaders, which include those who fought for its independence, now want to negotiate maritime boundaries. It's time for some very plain speaking in Canberra.

Australia and Timor Leste negotiated the Timor Sea Treaty in 2002 and the CMATS Treaty (Treaty on Certain Maritime Arrangements in The Timor Sea) in 2006. The CMATS treaty was negotiated in such indecent haste that Foreign Minister Alexander Downer deliberately circumvented the usual Australian parliamentary process for scrutinising the treaty.

 

"Turnbull's advisers may well continue to argue that risks in relationships can be minimised by maintaining present arrangements. This week's ruling should give the Canberra bureaucrats every reason to pause."

 

It was finalised at a time of great political instability in Timor Leste. CMATS was designed to put the negotiation of maritime boundaries on hold for 50 years, providing Timor Leste with a 50 per cent revenue share of the Greater Sunrise oil and gas field, even though most of the field fell within Australian jurisdiction under the 2002 agreement. Back in 2006, commentators including me endorsed CMATS as a fair deal given that it was supported by the Timorese leadership who were content to put boundary negotiations on the long finger in exchange for a short term financial windfall.

The expectation was that a deal for the development of Sunrise would be finalised within six years and that production would start shortly thereafter. But that never happened. No deal was struck with the joint venturers led by Woodside and Shell. With the present glut in oil and gas prices, it is highly unlikely that Sunrise will be developed in the foreseeable future. For example, Shell has shelved the Browse project off the Western Australian coast. Browse is twice the size of Sunrise, and has none of the complex jurisdictional issues.

Having learnt that Australia spied on the Timorese negotiators when CMATS was being finalised, the Timorese have been keen to invalidate the CMATS Treaty. They have other international proceedings on foot seeking a declaration of invalidity. They may succeed; they may not. Meanwhile the Timorese have received legal advice which encourages them to think that the whole of Sunrise might eventually be included within Timor's jurisdiction, avoiding the need to deal further with the Australians. There is no certainty about this, because negotiations will need to include a place at the table for Indonesia as well as Australia and Timor-Leste.

The Timorese convinced the Labor Party before the last election that a future Labor government should commit to prompt negotiation of a maritime boundary. Labor also announced it would reverse the 2002 Australian decision to withdraw Australia from court determinations or arbitration in the event of a failure to reach agreement. The Timorese then treaded carefully and respectfully with Malcolm Turnbull during the election campaign. With new prime ministers on either side of the Timor Trough, the Timorese thought the time was ripe to seek agreement on commencing the negotiation of maritime boundaries. They could have enlisted their many Australian friends to campaign against Turnbull in the election. But they decided not to. The opted to wait.

Armed with a strong legal team from the UK led by Vaughan Lowe and Sir Michael Wood, two of the doyens of international maritime law, the Timorese then took a bold step. Lowe and Wood had advised that the UN Convention on the Law of the Sea (UNCLOS) contained provisions for compulsory conciliation in cases where the parties had agreed not to go to arbitration or to judicial settlement. They argued this was the situation with CMATS. The commission agreed. The commission decided:

 

Nothing in CMATS constitutes an agreement 'to seek settlement of the dispute by a means of [the Parties'] own choice'. Nor does the commission consider that an agreement not to pursue any means of dispute settlement can reasonably be considered a dispute settlement means of the parties' own choice. Accordingly the commission concludes that CMATS is not an agreement [pursuant to UNCLOS] that would preclude recourse to compulsory conciliation.

 

The Conciliation Commission will now host a year of meetings between the parties assisting them to reach agreement on maritime boundaries. The commission will then produce a report. Though the report and any observations by the commission are not legally binding, this one-year procedure should now be enough to convince the Turnbull government that there is no point in putting negotiations on hold for another 41 years or until the election of the next Labor government.

 

"Turnbull will need to develop a new narrative as to why Australia wouldn't make the best of a bad lot and use the compulsory conciliation as a means to kick start a sensible negotiation of maritime boundaries. Hopefully he will drop the patronising Canberra line that we Australians know what's best for the Timorese."

 

Turnbull's advisers may well continue to tell him that CMATS provides certainty for economic development of Greater Sunrise, while putting on hold the uncertainty of maritime boundary negotiations which might exacerbate tensions with Indonesia, given the past dealings and agreements between Indonesia and Australia. They may well continue to argue that risks in relationships can be minimised by maintaining present arrangements. This week's ruling should give the Canberra bureaucrats every reason to pause.

There is nothing to be gained for Australia by continuing to put negotiations on hold when there is no immediate prospect of Sunrise being developed, when the Timorese are increasingly convinced (whether rightly or wrongly) that they were duped, when Australia is wanting to put out a clear message in the South China Sea that China be committed to negotiations in accordance with international law, and when Australia has to spend a year at the table engaged in conciliation under the watchful eye of five commissioners who have already taken a dim view of Australia's legalistic approach.

More than ever, Turnbull will have to stop preaching on the South China Sea if he is not prepared to act in the Timor Sea. Australia has already told the commission that 'it will engage in the conciliation in good faith'. So Turnbull will need to develop a new narrative as to why Australia wouldn't make the best of a bad lot and use the compulsory conciliation as a means to kick start a sensible negotiation of maritime boundaries. Hopefully he will drop the patronising Canberra line that we Australians know what's best for the Timorese. With their flash UK legal advisers and Norwegian commercial advisers, the Timorese will make their own decisions from here on. Thus far, David has scored two king hits in the international forum. It's time for Goliath to take stock.

 


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University.

Main image: Children in East Timor, by NeilsPhotography via Flickr

Topic tags: Frank Brennan, East Timor, South China Sea


 

submit a comment

Existing comments

So long as we have a supposed 'special relationship' with 'great and powerful friends', the rest of our foreign policy seems to be driven by short-term commercial objectives rather than long-term strategic considerations. I wonder if there would be a sudden change at DFAT if the Chinese government, or even Chinese companies, began to invest heavily in ports and runways in Timor Leste?
Ginger Meggs | 27 September 2016


Timor Leste certainly has every reason to go for the jugular, so to speak. Australia is a neighbour and would do well to consider that true friendship means loyalty, acceptance, discretion, and pleasure in the other's happiness and successes. Not paternalism.
Pam | 28 September 2016


Thank you Fr. Frank for your unending supporting us your little David with your articles.
Jose de Sa | 29 September 2016


Frank, A fine summary of another example of international bullying by Australia. We were,first of all, refusing to speak up to address the terrible crimes committed against the East Timorese. Next we have obviously decided to engage in condescending attitudes towards this now independent nation. When will we consign our colonial attitudes to the bin where they belong and start to see our Pacific neigh our?
Kevin Dance | 03 October 2016


This case shows the direction in which we in South Asia should go - conciliation rather than war whose noise is being hear..
Walter Fernandes | 03 October 2016


Frank thank you very much for airing this shameful period in Australia's foreign Policy history. Congratulations to the team at DLA piper for their commitment to social justice and the rule of law
David Cornwell | 03 October 2016


Enlightening! I hadn't thought of Australia's attitude to Timor Leste as being analagous to China's in the South China Sea...interesting idea.
Lenore Crocker | 03 October 2016


Remember INTERFET led by the man who is now Australia's Governor General? Remember then PM Howard having support from Australians for moving to help these people on our doorstep? How quickly this image was tarnished when treaties were set up that disadvantaged the very people we were sent to help. Greed ruled then and greed rules now. Come on Australia you an do far better!
Ern Azzopardi | 03 October 2016


'We have a strong interest in Timor-Leste's stability and growing prosperity, and in providing a stable and transparent framework for investment in the Timor Sea.' They have no idea just how patronising this sounds in Dili ...." Forget Dili, it's even sounds patronising here! Just when will we start to behave in a fair and decent manner towards others and not just the Timorese? Shame!
Peter R | 03 October 2016


How short our memories, it was the East Timorese that gave their lives to save and hide so many of our Australian soldiers from the Japanese in World War 11. We should act with justice and integrity and negotiate a fair deal over the oil rich Timor sea. We are too powerful and rich to be attempting to walk over our loyal neighbours.. Thank God for people like Father Frank Brennan with the legal expertise to take a stand.
Margaret Coffey | 03 October 2016


Thank you for the article. It articulates more coherently and with more information my feelings on the subject. Our country has become deceitful, selfish and cruel.
Anna | 03 October 2016


Thank you Fr Frank for keeping us informed. Our Government's condescending attitude to Timor Leste is appalling & embarrassing. Let's hope some respect for our neighbour is forthcoming. May justice, peace & economic freedom be genuinely achieved in Timor Leste. Good on them for pursuing our Government in the international courts.
Tess Harris | 03 October 2016


Congratulations to Father Frank for his well articulated article on the Timor Sea issue. The treatment of the East Timorese by Australian governments since World War 2 has been disgraceful. During that war, East Timor lost about 70,000 people out of a few population of 1/2 a.million because of its support for Australian commandos in the struggle against Japanese fascism. Surely, our leaders should have shown more friendship towards this tiny nation which was so supportive of Australia at great cost to itself, However, when the Indonesian dictatorship, which was put in place by the CIA and the Indonesian military (TNI) in 1965, invaded and occupied East Timor for 24 years, Coalition and ALP leaders turned their backs on them. They not only provided arms, military equipment and training to the brutal TNI, they also acted acted as apologists for the Indonesian dictatorship as it wiped out almost a third of Timor's population and destroyed 80% of its infrastructure. Now the Coalition is intent on cheating Timor out of billions of dollars worth of oil and gas out of its 1/2 of the Timor Sea. Timor-Leste is the poorest nation in the region and Australia is the wealthiest. Our leaders should stop being so callous towards this courageous and friendly allied nation.
Andrew (Andy) Alcock | 04 October 2016


"Commence a sensible negotiation of maritime boundaries" indeed. Fr Frank, instead of reducing this to David v Goliath story, it may be helpful if you helped readers to understand the complexity of the overlapping claims to the Continental Shelf that the two countries share and the technical difficulties that are posed for TL in bridging the Timor Trough with pipelines. The first agreement with Indonesia and the subsequent one with TL elegantly addresses the issues with an agreed sharing regime on all financial matters, and it is this agreement that requires further discussion.
Jim | 05 October 2016


Jim, I think I have done that at considerable length in the past. See for example my publications with the Australian Catholic Social Justice Council: The Timor Sea's Oil and Gas: What's Fair? (2004) and Time to Draw the Line (2013). There are also the more recent pieces I wrote for Eureka Street on 13 May 2013, 20 May 2014, 24 September 2014, and 20 March 2016.
Frank Brennan SJ | 05 October 2016


Jim, I could accept the point you make pdf the Australian government had agreed to the treaty being subjected to independent assessment. But it hasn't, which suggests to me that Australia has a lot to lose by such an assessment. agreeable to the
Ginger Meggs | 06 October 2016


Fr Frank and ginger. Father, I will look up your prior writings on this, however, as I understand it further negotiation will put pressure on both countries to relinquish their (internationally recognised) sovreignty over their continental shelf, something to which neither nation will agree, and nor should they. A sharing of the resources is the only logical arrangement, and that appears to be unacceptable to TL and not to be further negotiated. That is to say that only relinquishment of Australia's sovereign right to the shelf will be acceptable, and that should not happen.
jim | 08 October 2016


Thanks for the response Jim, and apologies for the gobbledegook in my earlier post (from my iPad). I appreciate the legal point you make but in pursuing our legal rights might we not undermine our long-term strategic interest in seeing TL develop as a viable, democratic and friendly neighbour rather than as a failed state?
Ginger Megga | 10 October 2016


Heya Frank put some pictures out there of the maritime dividing lines around the greater sunrise oil field. Sr Susan Connelly RSJ had some good ones. People will do the rest to support you. Go matey. I'm with you all the way on this one. Julia Della Franca
Julia Della Franca | 09 January 2017


Similar Articles

Cultural ownership and responsibility is not just a fad

  • Esther Anatolitis
  • 04 October 2016

Who owns a cultural object? Who has the right to determine cultural values? And how can public institutions exercise cultural responsibility? It's a timely set of questions as we consider the implications of the National Gallery of Australia's return of ancient Indian sculptures, the British Museum's refusal to return Indigenous objects, or Lionel Shriver's rejection of minority cultural identities. Each of these unleashes complex, painful consequences that can undermine cultural value or cultural safety.

READ MORE

The dangers of Trump and climate conspiracy theories

  • Fatima Measham
  • 29 September 2016

Trump predictably resorted to insinuation to mask his deficiencies. After the first presidential debate, he said: 'They gave me a defective mic. Did you notice that ... was that on purpose?' It is hilarious until you realise how it would be received by supporters. It captures something of contemporary politics, where the line between conspiracy theory and legitimate anti-establishment criticism is more smudged than ever. A deficit of trust is one thing; a detachment from truth is something else.

READ MORE