Pushing the Boundaries Too Far
Not Happenstance
I thank the Committee and Secretariat for their work in relation this inquiry. Its report reflects the expert evidence received by the Committee. It fails, however, to properly consider the context in which the actions of the Australian Government occurred and, in doing so, makes the wrong finding.
Australia’s declarations, lodged on 22 March 2002 to limit Australia’s acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ) and the International Tribunal on the Law of the Sea (ITLOS), were not mere happenstance. The declarations were part of Australia’s most shameful international swindle.
Declarations Context
As early as 1962 Australia had established that there were significant oil and gas reserves beneath the Timor Sea. It set about trying to gain access to these reserves.
Important to the following, it must be appreciated that Timor-Leste is flanked on either side by Indonesia.
Australia and Indonesia had negotiated a maritime boundary in 1972 based on a natural prolongation of the continental shelf, resulting in a boundary much closer to Indonesia than to Australia. Indonesia agreed to the boundary in exchange for Australia’s support of the concept of archipelagic waters in the Law of the Sea Convention (LOSC) of 1982, which entered into force in November 1994. Australia had thus gained the majority of oil and gas resources that might be discovered in the seabed. For its part, Indonesia benefited from the archipelagic waters concept because it gained significant rights to the seas between its many islands.
Noting that Indonesia flanked Portuguese Timor, this left a gap in the boundary line colloquially known as the ‘Timor Gap’. Australia was thus in the best possible position for negotiating with Portugal in respect of the area south of Portuguese Timor. The location of the boundary points at either end of the gap provided a most favourable situation for Australia in respect of the significant resources that were under the Timor Sea.
Frustratingly for Australia, but consistent with LOSC, Portugal’s approach to the boundary line was much different to Indonesia’s, with Portugal insistence on a median line. Portugal’s positions became insignificant, however, when in 1974 it granted independence to all of its colonies.
1974 was also the year that Woodside manoeuvred the ‘Big John’ drill into place and drilled the seabed, quickly confirming the presence of oil and gas. Viqueque, a town on the south coast of Portuguese Timor was used as the base for the drilling operation, on account of the fact that the drilling was taking place much closer to Portuguese Timor than Australia.
Australia, focussing on the oil and gas and the significant financial windfall that would be obtained if the Timor Gap were closed with a straight line, took the stance that Portuguese Timor should not gain independence and then Prime Minister Whitlam encouraged Indonesia to annex Timor. Indonesia set about preparing to invade Timor, and after Prime Minister Fraser re-confirmed Australia’s position, following the Whitlam dismissal, Indonesia invaded Portuguese Timor in 1975. In the war that followed, more than 200,000 East Timorese died at the hands of the Indonesian military.
Still chasing the oil and gas, Australia fully recognised Indonesian sovereignty over East Timor even though it acknowledged privately that Indonesia’s invasion of East Timor was ‘outright aggression’ and ‘contrary to Article 2(3) and (4) of the Charter’. Australia was the only western country to extend de jure recognition of Indonesian sovereignty; in 1989, Australia’s Foreign Minister, Gareth Evans, signed the Timor Gap Treaty with Indonesia’s Foreign Minister, Ali Alatas, sipping on champagne and posing for photographs.
Australia’s plans fell apart when, against all odds, Timor-Leste gained independence in 2002.
Australia was aware of the decision by the International Court of Justice in a case between Libya and Malta in 1985. Libya relied on the principle of natural prolongation of its continental shelf whereas Malta relied on the principle of equidistance—a median line—between the two countries. The ICJ dismissed Libya’s argument, and said that irrespective of the undersea geology, both countries had rights based on equidistance. In other words, international law favoured the East Timorese, and Australia knew it.
It was under these circumstances, with Timor-Leste was at last able to exercise its rights under international law, that Australia issued the declarations.
Declaration Motivated by Greed
The 2002 declaration was made to allow Australia to steal oil and gas from the newest and one of the most impoverished countries in the world. The Committee politely alludes to this in circumstances where brutal frankness should prevail.
At the time of the declarations the Australian Labor Party took a strong and principled view. A joint media released by the Shadow Minister for Foreign Affairs, Kevin Rudd MP, and the Shadow Attorney-General Robert McClelland MP, stated the party’s position in the following terms:
RESTRICTIONS ON INTERNATIONAL DISPUTE RESOLUTION CONDEMNED
Changes to Australia’s approach to international dispute resolution were condemned today by Shadow Foreign Minister Kevin Rudd and Shadow Attorney-General Robert McClelland. The most significant of the changes announced on Monday by the Foreign Minister and the Attorney-General was the exclusion of maritime boundary delimitation disputes and related matters from compulsory international dispute resolution forums previously accepted by Australia.
“The timing of the Government’s announcement is unfortunate,” Mr Rudd and Mr McClelland said. “It coincides with reports that an oil company is encouraging East Timor not to sign the recently–agreed treaty with Australia on Timor Sea oil resources, and that the same company has offered to finance international litigation by East Timor contesting the maritime boundaries between Australia and East Timor.”
“There is no evidence that East Timor intends to embark on such litigation, or that it would have any prospects of success. However, the Government’s action to preclude compulsory dispute settlement in this kind of matter may give rise to a misconception that Australia is not certain of the merits of its claims.”
“This announcement marks a historic departure from Australia’s proud record of accepting the compulsory jurisdiction of the International Court of Justice without reservation. That position has enjoyed bipartisan support since 1975. It said to the world that Australia honours its international obligations and has nothing to hide.”
“Excluding disputes related to the delimitation of maritime boundaries from our acceptance of the ICJ’s jurisdiction sends a very different message.”
“It says that we are not prepared to argue the legitimacy of any of our international boundaries in international tribunals. It casts doubt on our commitment to the ICJ as an important element of the international legal order. And it invites other countries to follow suit by lodging new exceptions to their acceptance of ICJ jurisdiction. All of this counts against Australia’s interests in having the ICJ recognised as a forum for the peaceful settlement of a wide range of international disputes when negotiation and arbitration have failed.”
“Excluding maritime boundary delimitation disputes from our acceptance of the International Tribunal for the Law of the Sea as a forum for compulsory dispute settlement sends equally negative messages.”
Further Sordid Behaviour
Of course, the sordid story does not stop there. As touched on lightly by the Committee, during further negotiations between Australia and Timor-Leste, Australia’s external intelligence agency, ASIS, spied on the East Timorese negotiating team, unconscionably establishing what East Timor’s negotiation bottom line was. The Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) was signed in 2007 with Australia obtaining a most advantageous outcome.
There can be no question that the spying operation occurred. The Committee is wrong to perpetuate the spying operation as an ‘alleged’ operation. There is nothing ‘alleged’ or hypothetical about it. Australia spied. Timor-Leste in its memorial before the ICJ in response to Australia raiding the offices of its legal counsel in 2013, stated:
1.3. This case is brought by Timor-Leste against Australia seeking a declaration that the Timor Sea Treaty 2002 (‘the 2002 Treaty’) remains in force in the form and with the text as it stood when the Treaty was signed by the Parties on 20 May 2002. Specifically, Timor-Leste seeks from the Tribunal a declaration that Article 22 of the 2002 Treaty remains valid and operative in its original terms notwithstanding the provisions of Article 3 of the Treaty Between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea 2006 (‘the 2006 Treaty’). Timor-Leste submits that the amendments to the 2002 Treaty that the 2006 Treaty purported to make are void and inapplicable due to the ineffectiveness of the 2006 Treaty.
1.4 The circumstances... are that during the negotiation of the 2006 Treaty between Timor-Leste and Australia in 2004, Australia covertly spied on the Timor-Leste negotiating team by means of listening devices surreptitiously and unlawfully placed by Australian personnel in the Timor-Leste government offices. This enabled the Australian negotiating team to become aware of the private discussions of the Timor- Leste negotiating team and of its position in relation to various issues arising in connection with the 2002 Treaty and the attempt to amend it by the drafting of the 2006 Treaty. The extent to which the Australian team made use of this illicitly obtained information cannot be determined, but in any case that is not an issue. It is enough that Australia put itself in a position to anticipate the negotiating stance of Timor-Leste, and the reasoning underlying that stance, and to benefit from that knowledge.
1.5 This conduct on the part of Australia violated customary international law in that it was manifestly done in bad faith, contrary to the requirement of good faith which is a fundamental legal principle governing relations between States. Such behaviour is analogous to fraud or corruption, grounds which are specifically recognised in the Vienna Convention on the Law of Treaties 1969 ('the VCLT') as bases for vitiating the apparent consent of a State to be bound by a treaty. These rules and principles of international law apply to the provisions in the 2006 Treaty that purported to amend the 2002 Treaty, with the result that those provisions are void and without legal effect and are thus incapable of amending the 2002 Treaty.
Two men, Witness K and Bernard Collaery, are facing charges in the ACT over revealing the ASIS operation.
On 4 April 2019 the Secretary of the Attorney General’s Department, Greg Moraitis, appeared before the Senate’s Legal and Constitutional estimates hearings. Mr Moraitis was, as it turns out, on the Australian negotiating team for CMATS. The following exchange occurred:
Senator PATRICK: Are you aware of the allegations, in respect of Australia spying on the negotiating team of the East Timorese
Mr Moraitis: I'm aware of that. There's a criminal case in the ACT. I'm well aware of it.
Senator PATRICK: Sure. And I presume most criminal cases are not launched on the basis of a fictitious operation.
Mr Moraitis: I would hope not.
The Committee should not allow its credibility to be undermined by expressing doubt about what we all know to be true – Australia spied on Timor-Leste.
Declarations Should Be Revoked
The declarations made by Australia on 22 March 2002 were part of an Australian Government swindle on the nascent state of Timor-Leste. They should be recognised as such. As Professor Fernandes said in his supplementary submission, ‘of the 21 States that made declarations under Article 298(1)(a) of LOSC, only nine also made declarations under Article 36(2) of the ICJ Statute. And out of these nine, only Australia explicitly excluded sea boundary delimitation disputes from the jurisdiction of the ICJ’.
Australia should revoke the declarations for two important reasons:
It would serve as an important reconciliation step with the people of East Timor.
It would enhance our standing in the internationally community as a returning participant in the international rules-based order.
That Labor has retreated from its principled position following the declarations being made is hugely disappointing.
In recommending things should stay the same the Liberal and Labor members of the committee join in the effort of rowing Australia’s Timor-Leste boat of shame.
Recommendation:
Australia should revoke the declarations made on the 22 March 2002.
Rex Patrick
Senator for South Australia