1
MEDIA SUMMARY
COMPULSORY CONCILATION BETWEEN TIMOR-LESTE
AND AUSTRALIA
Comprehensive selection of Media releases and media articles
2
INDEX OF MEDIA RELEASES AND ARTICLES
Media release from the Permanent Court of Arbitration, announcing it has jurisdiction to proceed
with compulsory conciliation, 26 September 2016
https://pca-cpa.org/wp-content/uploads/sites/175/2016/09/Press-Release-No.-4-EN.pdf
Pg.9
Media release from Ms Julie Bishop, Minister for Foreign Affairs and Mr George Brandis, Attorney-
General from the Australian Government, responding to the Conciliation Commission announcing it
has jurisdiction to proceed with compulsory conciliation, 26 September 2016
http://foreignminister.gov.au/releases/Pages/2016/jb_mr_160926.aspx?w=tb1CaGpkPX%2FlS0K%2
Bg9ZKEg%3D%3D
Pg.10
Media release from Minister of State, Agio Pereira from the Timorese Government, responding to the
Conciliation Commission announcing it has jurisdiction to proceed with compulsory conciliation, 26
September 2016
http://timor-leste.gov.tl/?p=16237&lang=en
Pg.11
Australia loses attempt to knock out East Timor's maritime boundary complaint
The Age article describes how Australia has lost in its claim that the Conciliation Commission has no
jurisdiction to hear a dispute between Australia and East Timor over undersea oil and gas resources.
Timor believes the dispute to be a matter of sovereignty. Australia says Timor should abide by the
existing treaties. The dispute has become a rare example of a foreign policy difference between the
major parties in Australia, with Labor announcing in 2015 it would negotiate with East Timor.
Comments from La Trobe University’s Bec Strating who said the conciliation was unlikely to change
Australia's approach, and East Timor was ‘running out of time’ to fix its economy. Comments also
from Swinburne University’s Michael Leach who said conciliation would still be important
politically, even though it will not be binding legally.
http://www.theage.com.au/federal-politics/political-news/australia-loses-attempt-to-knock-out-east-
timors-maritime-boundary-complaint-20160926-grooik.html
Daniel Flitton, The Age / SMH, 26 September 2016
Pg.12
Global court agrees to take up Timor, Australia sea border row
AFP article explains that an international arbitration court has agreed to pursue a legal maritime
boundary dispute between Australia and East Timor. East Timor had raised the dispute with the PCA,
but Australia had challenged its jurisdiction. Foreign Affairs Minister Julie Bishop said Australia
"accepts the commission's decision and will continue to engage in good faith,” although lawyers
noted that the process was not binding. The PCA recently ruled against China in the South China Sea
dispute. The article provides a history of East Timor and current Timor Sea treaties.
http://www.abc.net.au/news/2016-09-27/court-of-arbitration-takes-up-australia-timor-sea-border-
row/7879286
ABC News/AFP, 26 September 2016
Pg. 14
3
Court to hear Australia, East Timor border row
The ABC’s Beverley O'Connor interviews Swinburne University's Professor Michael Leach about
Australia's failure to stop an international investigation into a disputed maritime boundary with East
Timor.
http://www.abc.net.au/news/2016-09-27/court-to-hear-australia,-east-timor-border-row/7879304
ABC video, 26 September 2016
Pg.15
Timor-Leste secures win in claiming oil and gas reserves in Timor Sea
The ABC’s Peter Lloyd says that Timor-Leste has had a diplomatic win its efforts to claim a greater
share of the oil and gas reserves in the Timor Sea.
http://www.abc.net.au/am/content/2016/s4546066.htm
Peter Lloyd, ABC Radio, 27 September 2016
Pg.15
East Timor's plea for talks goes unanswered after Australia loses bid to stymie border talks
ABC Radio Program about the Australian Government’s lack of response to the decision by an
international tribunal to reject its claims that it has no jurisdiction to hear East Timor’s case for a
maritime boundary in the Timor Sea. Instead, two senior Ministers have issued a statement defending
the existing treaties. It is still not clear whether Australia will abide by the court finding.
http://www.abc.net.au/news/2016-09-27/e-timor's-plea-for-talks-goes-unanswered-
after/7881484?section=business
Peter Lloyd, ABC Radio, The World Today, 26 September, 2016
Pg. 16
Australia receives 'drubbing' by UN commission over East Timor maritime borders
The ABC’s Peter Lloyd says that Australia has lost the first leg of its legal fight with East Timor over
the maritime border between them. Australia tried to stop Timor using a United Nations tribunal in
the case, but the tribunal overruled Australia's protests and has ordered it to participate. Interview
with Chris Flynn from Gilbert and Tobin law firm.
http://www.abc.net.au/news/2016-09-26/australia-receives-'drubbing'-by-un-commission/7879188
Peter Lloyd, ABC Radio, PM Program, 26 September 2016
Pg.16
Australia loses bid to reject compulsory conciliation with Timor-Leste
SBS Radio story claims that Australia's refusal to negotiate a permanent maritime border with East
Timor has strained relations between the two countries. Australia opposed East Timor’s request for
compulsory negotiations but the UN Conciliation Commission overruled Australia’s protest.
Comments from Minister of State, Agio Pereira, Labor's foreign affairs spokeswoman, Penny Wong,
Foreign Minister, Julie Bishop, Attorney-General, George Brandis, Deakin University Professor,
Damien Kingsbury and Swinburne University Professor, Michael Leach.
http://www.sbs.com.au/news/article/2016/09/27/australia-loses-bid-reject-compulsory-conciliation-
timor-leste
Phillippa Carisbrooke, SBS, 27 September 2016
Pg. 19
East Timor Sea conciliation to proceed
AAP story outlines that a United Nations conciliation commission has ruled that it has jurisdiction to
hear a maritime boundary dispute between East Timor and Australia, rejecting Australia’s objections.
The Australian government says it accepts the commission's ruling and will continue to engage in
good faith as the conciliation process continues. The commission says the conciliation process will
take place behind closed doors over the next year.
http://www.sbs.com.au/news/article/2016/09/26/east-timor-sea-conciliation-proceed
SBS/AAP, 27 September 2016
Pg. 20
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Another win for 'David' Timor against 'Goliath’ Australia
Opinion piece from Father Frank Brennan comparing the maritime boundary dispute between East
Timor and Australia to a David and Goliath battle, as the Conciliation Commission rejects all six of
Australia’s objections to the conciliation. The author notes the significance of former Assistant
Secretary General in the Australian Attorney-General's Department Dr Rosalie Balkin’s involvement,
given the engrained views of the Australian bureaucracy on this matter. The article gives a history of
the Timor Sea treaties, referencing Foreign Minister Alexander Downer’s deliberate circumventing
of the usual parliamentary process to pass CMATS. East Timor is arguing the treaty is invalid given
Australia spied on Timor during negotiations. The Labor Party has since changed its policy on the
issue and has pledged to negotiate with East Timor. The Commission has 12 months to hear the case.
The article argues 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. Article also refers to the
hypocrisy of Australia’s comments regarding the South china Sea.
http://eurekastreet.com.au/article.aspx?aeid=49973#.V-ryczsp-Rs
Frank Brennan, 27 September 2016
Pg. 22
PCA to mediate Australia-East Timor sea border dispute
Article from a legal publication about the dispute between East Timor and Australia that says
Australia has lost its attempt to stop East Timor’s case case from being heard, after the Permanent
Court of Arbitration announced it had competency to proceed with the matter. In its decision, the
Commission said that “it is competent with respect to the compulsory conciliation” set out in East
Timor’s request. In 12 months, the Commission will report any agreements reached and, failing
agreement, its conclusions on all questions of fact or law relevant to the matter including
recommendations which may be appropriate for an amicable settlement. The report will be coursed
through the UN Secretary-General.
http://www.australasianlawyer.com.au/news/pca-to-mediate-australiaeast-timor-sea-border-dispute-
224126.aspx
Sol Dolor, Australiasian Lawyer, 28 September 2016
Pg. 25
East Timor Sea conciliation to proceed
AAP story that says a United Nations conciliation commission has ruled that it has jurisdiction to
hear a maritime boundary dispute between East Timor and Australia, rejecting objections from
Australia. The Commission says the conciliation process will take place behind closed doors over the
next year. Comments from Timorese Minister of State, Agio Pereira, Chief Negotiator Xanana
Gusmãu, Australian Foreign Minister Julie Bishop and Attorney General George Brandis.
http://www.heraldsun.com.au/news/breaking-news/hague-to-arbitrate-in-timoraust-dispute/news-
story/b0c4534e1418203ab451d5a204772613
Lloyd Jones, Australian Associated Press (AAP), 27 September 2016
Pg. 26
A good day in The Hague: Australia’s tactics in the Timor Sea oil dispute have been shameful
Opinion piece that talks about the history of the dispute between Timor-leste and Australia, starting
from the historic role of the Australian Government who helped Timor restore its independence, but
also had an interest in the resource rich Timor Sea. Author argues negotiations with Timor-Leste
after independence were conducted in a “bullying” and “hectoring” manner and that Australia has
behaved “despicably” towards Timor-Leste over maritime boundaries.
https://www.themonthly.com.au/blog/mungo-maccallum/2016/04/2016/1475556551/good-day-hague
Mungo MacCallum, The Monthly, Tuesday, 4th October 2016
Pg. 27
5
Australia fails in attempt to block Timor-Leste maritime boundary case
The Guardian article states that Timor-Leste will have its case against Australia over a disputed
maritime boundary heard by the Permanent Court of Arbitration in The Hague after the court rejected
Australia’s claim that the court had no jurisdiction. The article provides a history of the dispute
including the current treaties and how they came about, including the allegations of spying during
CMATS negotiations.
https://www.theguardian.com/world/2016/sep/26/australia-fails-in-attempt-to-block-timor-leste-
maritime-boundary-case?CMP=soc_568
The Guardian, 26 September 2016
Pg. 28
Court Rules Australia Must Talk with East Timor Over Oil Fields
Wall Street Journal article outlines that Australia will be forced into a conciliation process with East
Timor over a disputed maritime boundary, after an international arbitration court rejected Australia’s
claim the court had no jurisdiction. Australian Foreign Minister Julie Bishop said Australia will fight
to uphold the current revenue sharing treaty between the two nations. She said the recommendations
from the conciliation process aren’t binding. Under a 2006 maritime treaty, Australia and East Timor
agreed to equally share revenue from the Greater Sunrise field. Development of the field has been
delayed in part by East Timor’s insistence that gas be piped and processed onshore. East Timor is
arguing for the boundary to be fixed halfway between the two countries, placing the Greater Sunrise
field in Timorese waters. Australia is arguing the arbitration court has no jurisdiction in the matter as
Australia and East Timor had already signed a treaty ruling out dispute settlement procedures.
http://www.wsj.com/articles/court-rules-australia-must-talk-with-east-timor-over-oil-fields-
1474946041
Rebecca Thurlow, Wall Street Journal, 26 September 2016
Pg. 30
Global court takes up Timor-Leste, Australia sea border row
The Straits Times says an international arbitration court has agreed to take up a maritime border
dispute between Australia and Timor-Leste which cuts across oil and gas fields in the Timor Sea. The
Permanent Court of Arbitration held that it was “competent to continue with the arbitration process"
initiated by Timor-Leste in April. Timor-Leste urged the panel to help end the dispute, saying
negotiations have so far failed. Australia argued it had no jurisdiction in the dispute as Australia and
Timor had already signed a treaty ruling out recourse to the court. A five-member conciliation
commission ruled the dispute should be settled under the UN Convention of the Law of the Sea,
rather than the CMATS treaty.
http://www.straitstimes.com/asia/australianz/global-court-takes-up-timor-leste-australia-sea-border-
row
The Straits Times / AFP, 26 September 2016
Pg. 31
Hague to arbitrate Australia, East Timor boundary
Reuters says the Permanent Court of Arbitration in The Hague will oversee a compulsory arbitration
between East Timor and Australia on their maritime boundary, rejecting Australia's objections. East
Timor asked for the process, which could decide on which side of the border lies a large oil and gas
field over which the two countries have a revenue- sharing agreement. East Timor said Australian
espionage during treaty negotiations rendered the agreement flawed. Australia has resisted
negotiating a permanent border until 2056 at the earliest. The PCA said the conciliation process will
take place behind closed doors over the next year.
http://www.skynews.com.au/news/top-stories/2016/09/26/hague-to-arbitrate-aust--timor-boundary-
aust-dispu.html
Sky News / Reuters, 26 September 2016
Pg. 32
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The Hague revives maritime border dispute between Timor-Leste and Australia
CNBC story says that a 14-year old maritime border conflict between Timor-Leste and Australia has
been revived by The Hague's Permanent Court of Arbitration. The article describes the current
treaties and how they work, including the revenue ratios. Comments from La Trobe University
Lecturer Rebecca Strating stating that: "It is difficult to see how this [process] presents a practical,
long-term solution for resolving the dispute.” University of Sydney’s Ben Saul Challis says:
"Australia should stop obstructing Timor and help it to secure its borders and its future.”
Legal experts say July's South China Sea ruling could offer insight into the final verdict on the Timor
Sea matter.
http://www.cnbc.com/2016/09/27/the-hague-revives-maritime-border-dispute-between-timor-leste-
and-australia.html
Nyshka Chandran, CNBC, 27 September 2016
Pg. 33
Hague court to arbitrate in East Timor-Australia maritime border dispute
AFP says that the tribunal that ruled China’s claims to the South China Sea to be invalid, is taking up
a maritime boundary dispute in the Timor Sea. The PCA Commission will take up the case between
East Timor and Australia, with talks to continue over the next year. The tribunal said the meetings
will be “largely in a confidential setting.” Comments from Aaron Matta, senior researcher at the
Hague Institute for Global Justice think-tank: “The commission will be creating a positive
relationship between the two sides to try and bring them together to the table.”
http://www.scmp.com/news/asia/southeast-asia/article/2022669/hague-court-arbitrate-east-timor-
australia-maritime-border
South China Morning Post / AFP / Reuters, 26 September 2016
Pg. 36
Hague court to arbitrate in East Timor-Australia maritime border dispute
The Japan Times writes that the Permanent Court of Arbitration in The Hague will oversee a
compulsory conciliation between East Timor and Australia on their maritime boundary dispute,
rejecting Australian objections to the process. East Timor initiated the process, which could decide
on which side of the border lies a large oil and gas field over which the two countries have a revenue-
sharing agreement. East Timor said Australian espionage during treaty negotiations rendered recent
agreements flawed. Australia has resisted negotiating a permanent border until 2056 at the earliest.
Article includes comments from Timorese Minister of State, Agio Pereira and Australian Foreign
Minister Julie Bishop.
http://www.japantimes.co.jp/news/2016/09/27/asia-pacific/crime-legal-asia-pacific/hague-court-
arbitrate-east-timor-australia-maritime-border-dispute/#.V-rMe_krLIU
Japan Times / Reuters, 27 September 2016
Pg. 38
Timor-Leste founders talk nation-building
Article from the Brown Daily Herald covers talks by Prime Minister Dr Rui Maria de Araujo and
Minister Xanana Gusmãu at the Watson Institute for International and Public Affairs at Brown
University during their recent US visit. Article provides a history of Timor-Leste, focusing on its
journey from conflict to peace, and struggle for economic sustainability. The author references the
maritime boundary dispute with Australia and the compulsory conciliation process, including the
decision for proceedings to continue despite Australia’s objection.
http://www.browndailyherald.com/2016/09/28/timor-leste-founders-talk-nation-building/
Rachel Gold, Brown Daily Herald, 28 September 2016
Pg. 39
7
East Timor Takes Maritime Dispute With Australia to UN Court
Voice of America article writes that The International Court of Arbitration in the Netherlands is set to
hear a dispute between East Timor and Australia over the sharing of oil and mineral wealth in the
Timor Sea. East Timor has accused Australia of being a bully. Both sides will now enter into a
negotiation process that will take place behind closed doors over the next 12 months. Comments
from former East Timorese President Jose Ramos Horta.
http://www.voanews.com/a/east-timor-takes-maritime-dispute-with-australia-in-un-
court/3528236.html
Phil Mercer, VOA News, 28 September 2016
Pg. 41
International court dismisses Australian challenge over Timor Sea border dispute
World Socialist Website article writes that The Permanent Court of Arbitration in The Hague issued a
ruling upholding its authority to consider a case brought by East Timor over the disputed maritime
border in the Timor Sea, dismissing an Australian government challenge. Author argues the decision
marks another exposure of Canberra’s contempt for international law and its hypocrisy over the
resolution of maritime disputes. Australia sought to have the case thrown out on the grounds that the
PCA was not legally authorised to hear it. The 33-page ruling issued by the court dismissed this
claim, rejecting all the arguments advanced by the government’s legal team.
https://www.wsws.org/en/articles/2016/09/28/timo-s28.html
Patrick Kelly, World Socialist Website, 28 September 2016
Pg. 42
Wordpress Blogpost
Blog states that The Permanent Court of Arbitration has thrown out the Turnbull government’s
argument it did not have jurisdiction to hear a dispute about disputed maritime boundary between
Timor-Leste and Australia. The five-member Commission said it was competent with respect to the
compulsory conciliation over the maritime boundary. Comments from Timorese Minister of State,
Agio Pereira and Australian Foreign Minister Julie Bishop.
https://markskulley.wordpress.com
Mark Skulley, 26 September 2016
Pg. 44
Green light. Commission proceeds Blogpost
Blog states that the Conciliation Commission issued its decision on Competence, announcing that
“the Commission held that it was competent to continue with the conciliation process.” Comments
from Minister of State, Agio Pereira and Australian Foreign Minister, Julie Bishop.
http://timfo.org/new-blog-avenue/2016/9/26/green-light-commission-proceeds
Timor Sea Forum, 26 September 2016
Pg. 45
Court ruling, Australia and East Timor discuss maritime boundary
Reuters article suggests Australia and East Timor are aiming for an agreement over the disputed
maritime boundary in resource-rich waters between their countries. A court said on Thursday that a
deal could be reached by next September. Comments from Commission Chair Peter Taksoe-Jensen:
“Both sides are to be commended for being willing to move beyond past differences and work hard to
create conditions conducive to achieving an agreement.”
http://www.reuters.com/article/us-australia-timor-arbitration-idUSKCN12D0T9?il=0
Anthony Deutsch and Tom Heneghan, Reuters, 13 October, 2016
Pg. 47
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Timor Sea dispute: Timor-Leste is running out of time
In an article in The Interpreter, author Bec Strating questions the Conciliation Commission’s ability
to help resolve the dispute between East Timor and Australia given Australia’s exclusion of binding
compulsory dispute resolution procedures. Unlike the decision of courts or tribunals, the UNCC
report will not be binding on either party. In the short-term, the author argues the Timorese
government might find it difficult to keep the UNCC on the Australian media agenda. In the dispute,
Australia favours the geomorphic approach or continental shelf theory in establishing maritime
boundaries. In contrast, Timor-Leste favours a ‘median’ line, which is supported by post-UNCLOS
jurisprudence. Timor is also pushing for a pipeline to Timor. The question is whether either side will
compromise. Author suggests that Timor-Leste is running out of time and Australia knows it. Timor-
Leste’s bargaining vulnerabilities means it is likely that Australia will prolong boundary negotiations
for as long as possible.
https://www.lowyinterpreter.org/the-interpreter/timor-sea-dispute-timor-leste-running-out-time
Bec Strating, The Interpreter, 11 October 2016
Pg. 48
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PERMANENT COURT OF ARBITRATION MEDIA RELEASE [PCA]
Timor Sea Conciliation
https://pca-cpa.org/wp-content/uploads/sites/175/2016/09/Press-Release-No.-4-EN.pdf
Press release from the PCA
26 September 2016
On 19 September 2016, the Conciliation Commission issued its Decision on Competence in the compulsory
conciliation initiated between the Democratic Republic of Timor-Leste (“Timor-Leste”) and the
Commonwealth of Australia (“Australia”) under Annex V of the United Nations Convention on the Law of
the Sea (the “Convention”). In its Decision, the Commission held that it was competent to continue with the
conciliation process.
These compulsory conciliation proceedings concern the maritime boundary between Timor-Leste and
Australia and were initiated by Timor-Leste by way of a Notice addressed to Australia pursuant to Article 298
and Annex V of the Convention. The conciliation is being conducted under the auspices of the Permanent
Court of Arbitration (the “PCA”).
Australia’s Objections to Competence and Timor-Leste’s Response Pursuant to the Convention, a compulsory conciliation may be initiated where a party has exercised its right to
exclude disputes relating to sea boundary delimitation from compulsory arbitration and judicial settlement.
Australia exercised this right by way of a declaration made on 22 March 2002. When a dispute falling within
such a declaration arises, a compulsory conciliation may be initiated at the request of one of the parties to the
dispute. The conclusions and recommendations of the Conciliation Commission, however, are not binding on
the parties.
From the outset of these proceedings, Australia had indicated its intention to contest the competence of the
Commission and did so on 27 June 2016, immediately following the constitution of the Commission. Annex
V to the Convention provides that “[a] disagreement as to whether a conciliation commission acting under this
section has competence shall be decided by the commission.” From 29 to 31 August 2016, the Commission
convened a Hearing on Competence at the Peace Palace, the headquarters of the PCA in The Hague, the
Netherlands. In its Decision of 19 September 2016, the Commission considered and decided on the objections
raised by Australia.
In its objections, Australia argued that compulsory conciliation was precluded by the Treaty on Certain
Maritime Arrangements in the Timor Sea (“CMATS”), which includes an article providing for a
“moratorium” on dispute settlement procedures. Australia also argued that Timor-Leste had not met the
preconditions in the Convention to submit a dispute to compulsory conciliation. In response, Timor-Leste
argued that the Commission should consider its competence by reference to the Convention and should only
consider other treaties to the extent provided for in the Convention. Timor-Leste considered that CMATS was
not an agreement that would preclude compulsory conciliation under the Convention and, in any event, that
CMATS is null and void. Timor-Leste also argued that it had met the preconditions to submit a dispute to
compulsory conciliation.
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OFFICIAL GOVERNMENT PRESS RELEASES
Australian Government:
Timor Sea Conciliation
http://foreignminister.gov.au/releases/Pages/2016/jb_mr_160926.aspx?w=tb1CaGpkPX%2FlS0K%2Bg9ZKE
g%3D%3D
Joint media release:
The Hon Julie Bishop, Minister for Foreign Affairs
Senator the Hon George Brandis QC, Attorney-General
26 September 2016
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.
Revenues from the Joint Petroleum Development Area are split 90 percent to Timor-Leste and 10 percent to
Australia. Despite these beneficial treaty arrangements, on 11 April 2016, Timor-Leste requested a
Conciliation Commission under the UN Convention on the Law of the Sea (UNCLOS) to conciliate
differences between Australia and Timor-Leste on maritime boundaries in the Timor Sea.
The Conciliation Commission announced on 26 September that it has jurisdiction to proceed with the
conciliation.
Australia accepts the Commission’s decision and will continue to engage in good faith as we move to the next
phase of the conciliation process. This approach is consistent with our support for the rules-based
international order.
Australia abides by the pre-existing and legally-binding 2002 Timor Sea Treaty and 2006 Treaty on Certain
Maritime Arrangements in the Timor Sea (CMATS). We seek to uphold these treaty arrangements which are
consistent with international law and were negotiated in good faith.
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. We are committed to working together to strengthen
our relationship and overcome our differences in the Timor Sea.
The role of the Conciliation Commission is to assist the parties reach a settlement. In accordance with the
provisions of UNCLOS, the Commission will produce a report which, unlike an arbitration decision, is not
legally binding.
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Timor-Leste Government:
Timor Sea Conciliation
http://timor-leste.gov.tl/wp-content/uploads/2016/09/Timor-Leste-welcomes-Conciliation-Commission-s-
landmark-decision-to-proceed.pdf
Media release:
H.E Minister of State, Agio Pereira
H.E Chief Negotiator, H.E. Kay Rala Xanana Gusmão
26 September 2016
Timor-Leste welcomes Conciliation Commission’s landmark decision to proceed The Government of Timor-
Leste welcomes the decision of the Conciliation Commission that the Commission has competence to
continue with the conciliation proceedings.
The decision follows a three-day hearing held in The Hague to hear the objections to its competence advanced
by the Commonwealth of Australia.
A Press Release issued by the Permanent Court of Arbitration on the 26th of September on behalf of the
Commission announced the unanimous decision regarding the challenge to its competence.
The Commission will now continue to exercise its function as described in Annex V of the United Nations
Convention on the Law of the Sea, which is to “hear the parties, examine their claims and objections, and
make proposals to the parties with a view to reaching an amicable settlement.”
Spokesperson for the Government and Agent for the case, Minister of State Agio Pereira noted “Timor-Leste
welcomes this decision. This process is an opportunity to set a good example in our region and we will engage
with respect for the commission and its recommendations, ever conscious of the importance of maintaining
the best possible relationship with our close neighbour Australia.”
Chief Negotiator, H.E. Kay Rala Xanana Gusmão thanked the Commissioners for their expertise and noted:
“Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea.”
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AUSTRALIAN MEDIA
Australia loses attempt to knock out East Timor's maritime boundary complaint
http://www.theage.com.au/federal-politics/political-news/australia-loses-attempt-to-knock-out-east-timors-
maritime-boundary-complaint-20160926-grooik.html
Daniel Flitton, The Age / SMH, 26 September 2016
Australia has lost in its claim that an international commission has no jurisdiction to hear a complaint by East
Timor in the bitter dispute over undersea oil and gas riches.
Prime Minister Malcolm Turnbull earlier this year knocked back a call for fresh negotiations on the maritime
boundary in the Timor Sea, but the decision released on Monday from the Permanent Court of Arbitration at
The Hague opens the way for talks between the two countries.
In a statement on Monday, the commission at The Hague ruled it had the jurisdiction to hold a "conciliation"
under a never-before invoked article of the international law of the sea.
The decision was handed down on September 19, but kept under wraps until this week.
East Timor wants a greater slice of revenues and now argues the resources fall within its territory, triggering
the conciliation claim.
Independence hero Xanana Gusmao welcomed the decision, linking the dispute with East Timor's long
struggle against Indonesian occupation.
"Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea," Mr Gusmao said in a statement.
But Australia challenged the legal basis of the commission to hear the case during at times tense closed-door
proceedings last month, insisting East Timor should respect the existing treaty - which has delivered $16
billion in revenue to the fledgling nation.
Foreign Minister Julie Bishop was also quick to note the conciliation process invoked by East Timor is not
binding. Australia has already withdrawn from the compulsory arbitration rules for drawing up maritime
boundaries under international law.
The commission rejected Australia's argument that the existing treaty, which includes a 50-year moratorium
on maritime boundary negotiations, meant there were no grounds for conciliation.
East Timor argued the exiting treaty - known as Certain Maritime Arrangements in the Timor Sea - was "null
and void".
The dispute has become a rare example of a foreign policy difference between the major parties in Australia,
with Labor pledging at the last election to return to the negotiating table with East Timor.
Bec Strating from La Trobe University warned last week ahead of the conciliation was unlikely to change
Australia's approach, and East Timor was "running out of time" to fix a rapidly declining economy.
East Timor specialist Michael Leach from Swinburne University of Technology said conciliation would still
be important politically, even though it will not be binding legally.
Professor Leach said the decision suggests Australia's obligation under international law to negotiate a
maritime boundary in good faith has survived the treaties with East Timor.
13
But Professor Leach said Australia could circumvent the legal process altogether by agreeing to border
negotiations - "and settle this irritant in the relationship for good."
The conciliation was invoked in April, and is now expected to run for the next year, at least.
Fairfax Media has sought comment from the Australian government.
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Global court agrees to take up Timor, Australia sea border row
http://www.abc.net.au/news/2016-09-27/court-of-arbitration-takes-up-australia-timor-sea-border-row/7879286
ABC News / AFP, 26 September 2016
An international arbitration court has agreed to take up a decade-long border dispute between Australia and
East Timor over territory in the Timor Sea that contains large oil and gas deposits worth an estimated $40
billion.
The Permanent Court of Arbitration (PCA) "held that it was competent to continue with the conciliation
process" initiated by East Timor against Australia in April, the court based in The Hague said.
East Timor last month urged the body — the world's oldest arbitration tribunal — to help end the dispute that
has soured relations between the two countries, saying negotiations had so far failed.
Australia in return had argued the PCA had no jurisdiction in the battle as the Government had already signed
a treaty with East Timor ruling out any recourse to the court. East Timor welcomed the PCA's decision.
"Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea," the country's independence resistance hero and former prime
minister Xanana Gusmao said.
Foreign Affairs Minister Julie Bishop said Australia "accepts the commission's decision and will continue to
engage in good faith as we move to the next phase of the conciliation process".
"We are committed to working together to strengthen our relationship and overcome our differences in the
Timor Sea," she added.
The Australian Government's lawyers had also sought to argue that it had initiated talks with East Timor
through an exchange of letters in 2003 to try to solve the dispute.
But the panel said the exchange of letters between Australia and East Timor "did not constitute an
agreement… because the exchange was not… legally binding".
And the PCA's five-member conciliation commission ruled the dispute should be settled under the UN
Convention of the Law of the Sea, rather than the 2006 treaty — called Certain Maritime Arrangements in the
Timor Sea (CMATS) — which covers the vast Greater Sunrise gas field lying between the two nations.
East Timor has also called for CMATS to be torn up after accusing Australia of spying to gain commercial
advantage during the 2004 negotiations.
East Timor however officially dropped its spying case against the Government before the UN's International
Court of Justice in June 2015 after Australia returned sensitive documents.
Talks to take place in 'confidential setting'
The PCA has not shied away from stepping into complex diplomatic battles.
Earlier this year it sparked fury in Beijing by ruling in a case brought by the Philippines that China's claims to
a vast swathe of the resource-rich South China Sea were invalid.
The PCA, set up in 1899, is dedicated to resolving international disputes through arbitration, mediation and
other means, by referring to international and bilateral treaties.
15
East Timor, which only gained its independence from Indonesian occupation in 2002, is an impoverished
nation heavily dependent on oil and gas exports.
Talks between Timor and Australia will now continue over the next year, the tribunal based in The Hague
said, but it stressed the meetings will be "largely in a confidential setting".
The commission will be involved "in a process for creating a positive relationship between the two sides to try
and bring them together to the table," Aaron Matta, a senior researcher at The Hague Institute for Global
Justice think-tank, said
A history of treaties in the Timor Sea
In 1989 Australia and Indonesia signed the Timor Gap Treaty when East Timor was still under
Indonesian occupation.
East Timor was left with no permanent maritime border and Indonesia and Australia got to share the
wealth in what was known as the Timor Gap.
In 2002 East Timor gained independence and the Timor Sea Treaty was signed, but no permanent
maritime border was negotiated.
East Timor has long argued the border should sit halfway between it and Australia, placing most of
the Greater Sunrise oil and gas field in their territory.
In 2004 East Timor started negotiating with Australia again about the border.
In 2006 the CMATS treaty was signed, but no permanent border was set, and instead it ruled that
revenue from the Greater Sunrise oil and gas field would be split evenly between the two countries.
Further ABC coverage:
Video interview with Professor Michael Leach: Court to hear Australia, East Timor border row
http://www.abc.net.au/news/2016-09-27/court-to-hear-australia,-east-timor-border-row/7879304
26 September 2016
Beverley O'Connor speaks to Swinburne University's Professor Michael Leach about Australia's failure to
stop an international investigation into a disputed maritime boundary with Timor-Leste (video).
ABC Radio: Timor-Leste secures win in claiming oil and gas reserves in Timor Sea
http://www.abc.net.au/am/content/2016/s4546066.htm
Peter Lloyd, 27 September 2016
Timor-Leste has chalked up a symbolic and diplomatic win in its long running campaign to claim a greater
share of the vast oil and gas reserves that lie in the Timor Sea. Dili wants a permanent, equidistant maritime
boundary that would mean Australia surrenders territory, and billions of dollars in untapped mineral wealth.
The Australian government last night lost its last ditch bid to avoid compulsory conciliation to negotiate a
border.
Featured: Agio Pereira, East Timor Minister of State; Penny Wong, Foreign affairs spokeswoman
16
East Timor's plea for talks goes unanswered after Australia loses bid to stymie border talks
http://www.abc.net.au/news/2016-09-27/e-timor's-plea-for-talks-goes-unanswered-
after/7881484?section=business
Peter Lloyd, ABC Radio 'The World Today', 26 September 2016
Today's challenge to the Australian Government by the government of East Timor's to start negotiations for a
permanent maritime border has so far gone unanswered.
Instead two senior Ministers have issued a statement defending the existing treaties.
Australia's attempts to block the Timorese government from taking its maritime boundary ambitions to an
international tribunal has failed.
And it is still not clear whether Australia will abide by the court finding, as Peter Lloyd reports.
Featured:
Agio Pereira, Acting Prime Minister Timor-Leste
Michael Leach, Swinburne University
Frank Brennan, Jesuit Priest & lawyer
ABC Radio: Australia receives 'drubbing' by UN commission over East Timor maritime borders
http://www.abc.net.au/news/2016-09-26/australia-receives-'drubbing'-by-un-commission/7879188
Peter Lloyd, ABC 'PM' Program, 26 September 2016
Australia has lost the first leg of its legal fight with East Timor (Timor-Leste) over the maritime border
between the two countries. Australia went to international arbitration to stop Timor using a United Nations
tribunal in the case. A United Nation's Conciliation Commission overruled Australia's protests and has
ordered it to participate. International law expert Chris Flynn says the 'remarkable decision' is a
'comprehensive rebuttal' of Australia's primary arguments against reconciliation.
Transcript:
MARK COLVIN: Australia has lost the first leg of its legal fight with East Timor, Timor-Leste, over the
maritime border between the two countries.
Australia went to international arbitration to stop Timor using a United Nations tribunal in the case.
No permanent boundary exists at present.
Instead there are revenue-sharing contracts that Timor says unfairly leave a large slice of billions of dollars in
oil and gas deposits in Australian hands.
Those now appear to be null and void after a United Nation's Conciliation Commission tonight overruled
Australia's protests and ordered it to participate.
Chris Flynn is a partner at Gilbert and Tobin law firm, and an expert in the international law of the sea. He
spoke to Peter Lloyd.
17
CHRIS FLYNN: Well, look, I think it's quite a remarkable decision and it is really a comprehensive rebuttal
of the primary points Australia has made trying to get out of the conciliation and retain the status quo.
PETER LLOYD: What was the Australian argument? What were they putting to the tribunal?
CHRIS FLYNN: Well, the Australian argument was that because of a treaty that East Timor and Australia
entered into called CMATS, Certain Maritime Arrangements in the Timor Sea so CMATS is the acronym,
because of that treaty and a provision under it which basically said that East Timor and Australia couldn't
effectively sue each other under international law.
PETER LLOYD: Is the tribunal saying that the moratorium on talks for 50 years isn't in itself a process and in
fact the tribunal is the process?
CHRIS FLYNN: Correct, that is part of it but I think what's really interesting is potentially there is a
paragraph in there which I think will provide East Timor with a lot of hope that there actually might be
potentially if this conciliations fails, a much stronger position it can take against Australia even though
CMATS says it can't.
The court has said that it might be able to do that. I think that's a really important, really important point
coming out of this.
PETER LLOYD: So basically it's saying that even if all this fell apart, the Timorese have a legal avenue in
places that the Australians didn't think they did?
CHRIS FLYNN: Quite and that, that, that is one reading of that paragraph and I think it's quite a clear reading
of it.
PETER LLOYD: Is this spelling out territory that the Australians didn't expect, that the tribunal sees itself
playing a role as the dispute mechanism?
CHRIS FLYNN: Yeah, well that's exactly right. Those paragraphs indicate actually what the conciliation
process, the commission might be able to assist in is determining the ground on which the conciliation takes
place and that ground will be the principles that the parties should be arguing about and it's the very principles
that are really in dispute here between Australia and East Timor.
Australia makes its claims under a much older set of laws and East Timor says, well, UNCLOS (UN
Convention on the Law of the Sea) is the treaty that should determine the dispute.
That position is consistent with what the Permanent Court of Arbitration in The Hague said in the
China/Philippines dispute.
Now that's why it says Australia will be forced to have a conciliation based on the principles under the law of
the sea which would apply a much fairer and equitable resolution for East Timor.
PETER LLOYD: And potentially much sooner than 12 months hence?
CHRIS FLYNN: Well, correct and potentially much, much sooner, that's right.
PETER LLOYD: How is this going to be received in Canberra today?
CHRIS FLYNN: I understand that the Australian delegation went into these proceedings very, very
confidently and I think this, as I said, is a bit of a drubbing for Australia.
So I think Australia will be very, very disappointed but I note that the Foreign Minister said that Australia will
comply with the decision of the court and in many ways, Peter, I mean what can Australia do?
18
We can't on one hand be saying to China that it needs to respect international law and the decisions of this
very court in respect of its disputes with the Philippines and more broadly in the South China Sea and then not
comply with this one against a country like East Timor. So I think Canberra will find that it's caught between
a rock and a hard place.
PETER LLOYD: So what are Canberra's options now?
CHRIS FLYNN: Well, I think they need to go into conciliation and they need to make a good fist of it from
their perspective but the reality is I think that you'll find, as I've sort of indicated, that the weight of the law
and precedent will be against them.
It should mean the equidistance principle.
MARK COLVIN: Chris Flynn from Gilbert and Tobin law firm talking to Peter Lloyd.
19
SBS World News Radio: Australia loses bid to reject compulsory conciliation with Timor-Leste
Australia has lost its fight against compulsory conciliation to resolve its lengthy maritime border dispute with
Timor-Leste.
http://www.sbs.com.au/news/article/2016/09/27/australia-loses-bid-reject-compulsory-conciliation-timor-leste
Phillippa Carisbrooke, SBS, 27 September 2016
At stake are oil and gas fields estimated to be worth tens of billions of dollars. Australia's refusal to negotiate
a permanent maritime border with Timor-Leste has strained relations.
The fledgling country's request for compulsory negotiations with its neighbour to decide the boundaries of
large oil and gas fields was opposed by the Australian government last month.
But the United Nation's Conciliation Commission in The Hague overruled Australia's protest last night,
ordering it to take part.
The decision has been welcomed by Timor-Leste's Minister of State, Agio Pereira, in an interview with the
ABC.
"It's good for both Australia and Timor-Leste, that's very good. Because you have to resolve these issues. You
cannot go on forever arguing with each other in a polarised way."
Foreign Minister Julie Bishop and Attorney-General George Brandis have issued a statement saying Australia
accepts the Commission's decision and will continue to engage in good faith in the conciliation process.
The Opposition wants a quick resolution.
Labor's foreign affairs spokeswoman, Penny Wong, says a permanent agreement is long overdue.
"This is an opportunity for us to resolve it. To settle these maritime boundaries in fair and permanent terms.
And we would urge the government to take this opportunity with both hands."
Under current treaty arrangements, revenue from the Joint Petroleum Development Area in the Timor Sea is
split. 90 per cent goes to Timor-Leste and 10 per cent to Australia.
If the maritime boundary were to be drawn half-way between the two countries, the rich oil and gas fields
would fall entirely in East Timorese waters.
An expert on Timor-Leste at Deakin University, Professor Damien Kingsbury, says the federal government
may fear being asked to pay back royalties.
"There is also concern that it could open up the possibility of Indonesia also asking for its boundaries to be
redrawn in line with the international law of the sea."
The Commission's report will not be legally binding.
A Timor-Leste specialist at Melbourne's Swinburne University of Technology, Professor Michael Leach, says
Australia's response will be watched internationally.
"Australia has taken quite a strong position on China in the South China Sea, urging them to respect
international law, which obviously raises the issue of consistency in relation to this dispute."
The conciliation process will take place behind closed doors over the next year.
20
Further coverage from SBS:
East Timor Sea conciliation to proceed
Australia says it accepts a UN conciliation commission ruling that it can hear a maritime boundary dispute
over the Timor Sea.
http://www.sbs.com.au/news/article/2016/09/26/east-timor-sea-conciliation-proceed
SBS / AAP, 27 September 2016
A United Nations conciliation commission has ruled that it has jurisdiction to hear a maritime boundary
dispute between East Timor and Australia, rejecting objections from Canberra.
But the Australian government says it accepts the commission's ruling and will continue to engage in good
faith as the conciliation process continues.
East Timor sought the compulsory conciliation to decide the boundaries of a large oil and gas field over which
the two countries have a revenue-sharing agreement, arguing that alleged Australian spying on its officials
rendered the 2006 agreement flawed.
After hearings in The Hague last month, the conciliation commission ruled on Monday that it had the
jurisdiction to hear the case, despite objections from Australia which has refused to negotiate a permanent
boundary.
The commission says the conciliation process will take place behind closed doors over the next year.
In a statement on Monday, Foreign Minister Julie Bishop and Attorney-General George Brandis said Australia
accepted the commission's decision "and will continue to engage in good faith as we move to the next phase
of the conciliation process".
"This approach is consistent with our support for the rules-based international order."
The ministers said Australia abided by the 2002 Timor Sea Treaty and 2006 Treaty on Certain Maritime
Arrangements in the Timor Sea (CMATS) signed by both countries.
"We seek to uphold these treaty arrangements which are consistent with international law and were negotiated
in good faith."
The ministers noted that the commission's role was to assist the parties to reach a settlement and it would
produce a report "which, unlike an arbitration decision, is not legally binding".
East Timor's Minister of State Agio Pereira on Monday welcomed the commission's decision to continue with
the conciliation to reach "an amicable settlement".
"This process is an opportunity to set a good example in our region and we will engage with respect for the
commission and its recommendations, ever conscious of the importance of maintaining the best possible
relationship with our close neighbour Australia," he said in a statement.
Former East Timorese president Xanana Gusmao, the chief negotiator before the commission, thanked the
commissioners for their ruling.
"Just as we fought so hard and suffered so much for our independence, Timor-Leste (East Timor) will not rest
until we have our sovereign rights over both land and sea."
21
Ms Bishop and Mr Brandis said the current treaty arrangements had been "hugely beneficial" to East Timor in
helping it accumulate $16 billion in a sovereign wealth fund.
"We are committed to working together to strengthen our relationship and overcome our differences in the
Timor Sea," they said.
Arguing Australia's case in The Hague last month, Department of Foreign Affairs and Trade deputy secretary
Gary Quinlan said Australia did not accept East Timor's claims that allegations of Australian espionage made
the CMATS treaty invalid.
Video included: http://www.sbs.com.au/news/article/2016/09/26/east-timor-sea-conciliation-proceed
22
Another win for 'David' Timor against 'Goliath’ Australia
http://eurekastreet.com.au/article.aspx?aeid=49973#.V-ryczsp-Rs
Frank Brennan, 26 September 2016
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!
This 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 the 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
23
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.
24
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.
25
PCA to mediate Australia-East Timor sea border dispute
http://www.australasianlawyer.com.au/news/pca-to-mediate-australiaeast-timor-sea-border-dispute-
224126.aspx
Sol Dolor, Australiasian Lawyer, 28 September 2016
Australia has lost its attempt to quash Timor-Leste’s maritime boundary complaint after the Permanent Court
of Arbitration (PCA) announced it was competent to handle the conciliation and that the matter will proceed.
In a decision made on Monday, 19 September but published only this week, the ad hoc Commission under the
1982 United Nations Convention on the Law of the Sea (UNCLOS) said that it is “competent with respect to
the compulsory conciliation” set out in Timor-Leste’s request.
“There are no issues of admissibility or comity that preclude the Commission from continuing these
proceedings,” the decision read.
Last month, Timor-Leste urged the commission to mediate the dispute claiming bilateral negotiations have
been futile.
Australia maintained that the Commission had no jurisdiction because it had signed a treaty with its
neighbour’s government barring any court recourse. It also refuses to negotiate a permanent border until 2056
at the earliest.
The arbitration could decide which territory covers large oil and gas deposits estimated to be worth $40b.
“Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea,” Xanana Gusmao, the country’s former prime minister, said in a
statement after the PCA’s decision.
Australia “accepts the commission's decision and will continue to engage in good faith as we move to the next
phase of the conciliation process,” Foreign Affairs Minister Julie Bishop said.
“We are committed to working together to strengthen our relationship and overcome our differences in the
Timor Sea,” she added.
In 12 months, the Commission will report any agreements reach and, failing agreement, its conclusions on all
questions of fact or law relevant to the matter in dispute including recommendations which may be
appropriate for an amicable settlement.
The report will be coursed through the UN Secretary-General and transmitted to the parties in dispute.
26
East Timor Sea conciliation to proceed
http://www.heraldsun.com.au/news/breaking-news/hague-to-arbitrate-in-timoraust-dispute/news-
story/b0c4534e1418203ab451d5a204772613
Lloyd Jones, Australian Associated Press (AAP), 27 September 2016
A United Nations conciliation commission has ruled that it has jurisdiction to hear a maritime boundary
dispute between East Timor and Australia, rejecting objections from Canberra.
But the Australian government says it accepts the commission's ruling and will continue to engage in good
faith as the conciliation process continues.
East Timor sought the compulsory conciliation to decide the boundaries of a large oil and gas field over which
the two countries have a revenue-sharing agreement, arguing that alleged Australian spying on its officials
rendered the 2006 agreement flawed.
After hearings in The Hague last month, the conciliation commission ruled on Monday that it had the
jurisdiction to hear the case, despite objections from Australia which has refused to negotiate a permanent
boundary.
The commission says the conciliation process will take place behind closed doors over the next year.
In a statement on Monday, Foreign Minister Julie Bishop and Attorney-General George Brandis said Australia
accepted the commission's decision "and will continue to engage in good faith as we move to the next phase
of the conciliation process".
"This approach is consistent with our support for the rules-based international order."
The ministers said Australia abided by the 2002 Timor Sea Treaty and 2006 Treaty on Certain Maritime
Arrangements in the Timor Sea (CMATS) signed by both countries. "We seek to uphold these treaty
arrangements which are consistent with international law and were negotiated in good faith." The ministers
noted that the commission's role was to assist the parties to reach a settlement and it would produce a report
"which, unlike an arbitration decision, is not legally binding".
East Timor's Minister of State Agio Pereira on Monday welcomed the commission's decision to continue with
the conciliation to reach "an amicable settlement". "This process is an opportunity to set a good example in
our region and we will engage with respect for the commission and its recommendations, ever conscious of
the importance of maintaining the best possible relationship with our close neighbour Australia," he said in a
statement.
Former East Timorese president Xanana Gusmao, the chief negotiator before the commission, thanked the
commissioners for their ruling. "Just as we fought so hard and suffered so much for our independence, Timor-
Leste (East Timor) will not rest until we have our sovereign rights over both land and sea."
Ms Bishop and Mr Brandis said the current treaty arrangements had been "hugely beneficial" to East Timor in
helping it accumulate $16 billion in a sovereign wealth fund. "We are committed to working together to
strengthen our relationship and overcome our differences in the Timor Sea," they said.
Arguing Australia's case in The Hague last month, Department of Foreign Affairs and Trade deputy secretary
Gary Quinlan said Australia did not accept East Timor's claims that allegations of Australian espionage made
the CMATS treaty invalid.
27
A good day in The Hague: Australia’s tactics in the Timor Sea oil dispute have been shameful
https://www.themonthly.com.au/blog/mungo-maccallum/2016/04/2016/1475556551/good-day-hague
Mungo MacCallum, The Monthly, Tuesday, 4th October 2016
It may sound unpatriotic, but I could not help cheering when the Permanent Court of Arbitration in The Hague
brought down its decision last week against Australia.
After more than 12 festering years, this finally brings to a head a shameful and shameless exhibition of
browbeating and exploiting our newest and poorest neighbour, Timor-Leste.
John Howard claimed much of the credit for defending the independence of the nation, and so he should; but
his motives were not entirely altruistic.
At the time of the Indonesian invasion in 1975, the Australian ambassador in Jakarta, Richard Woolcott, noted
that an important consideration for Canberra should be the oil-rich seabed beneath the Timor Sea; it was in
Australia’s interests to control as much of it as possible, and the Indonesians would drive a far harder bargain
than would the impoverished Timorese.
Nearly 30 years later, Howard made his call, and immediately after the declaration of Timorese independence
in 2002, Australia’s foreign minister, Alexander Downer, was on the doorstep demanding negotiations. The
newly-formed nation was desperate for support and finance, which gave Downer his chance.
He behaved like an archetypal private-school bully, hectoring, threatening and, it later transpired, spying to
achieve a manifestly unfair division: the boundary line was pushed a long way north to give Australia a share
of what became the Sunrise fields. The Timorese didn’t like it, but they had no choice; and they had no choice
again when, five years later, Downer insisted that the treaty he had enforced should be extended until 2057 –
by which time the oil would all have been sold.
But Downer’s perfidy was revealed when one of the spooks who had been involved in bugging the Timorese
talks turned whistleblower. The government did all it could to shut him down; his lawyer’s offices were raided
by ASIO and his passport confiscated indefinitely. But the scandal turned international opinion, which was
already on the side of the impoverished Timor-Leste, further against Australia.
And when Timor went to The Hague to ask that the treaty be renegotiated with more equitable boundaries,
Australia was forced to agree. The lawyers fought hard, claiming that the treaty was signed and sealed, and
that therefore there was nothing to negotiate. But the court disagreed and ordered conciliation.
Julie Bishop, the current foreign minister, having scarcely drawn breath after inveighing about the sanctity of
the rule of international law over the South China Sea dispute, had no real choice, so conciliation –
negotiation – there will be. It may or may not be effective; but it has already exposed a clear injustice and the
standover tactics of the Howard government in its naked pursuit of spoil.
To take advantage of any vulnerable victim is despicable; but to deliberately try to beggar an ally and a friend
while purporting to offer support is unforgivable. Even Alexander Downer would have to admit that it is just
not cricket. And that is why I, along with most of the civilised world, am cheering.
28
INTERNATIONAL MEDIA
Australia fails in attempt to block Timor-Leste maritime boundary case
Australia forced to take part in conciliation at the Hague over maritime border in relation to area that
contains an estimated $40bn worth of oil and gas
https://www.theguardian.com/world/2016/sep/26/australia-fails-in-attempt-to-block-timor-leste-maritime-
boundary-case?CMP=soc_568
The Guardian, 26 September 2016
Timor-Leste will have its case against Australia over a disputed maritime boundary heard by the permanent
court of arbitration in The Hague after the court rejected Australia’s claim that the court had no jurisdiction.
Timor-Leste asked for the process which could decide on which side of the border lies a large oil and gas field
over which the two countries have a revenue-sharing agreement.
Australia has resisted negotiating a permanent border until 2056 at the earliest. The conciliation process will
now take place behind closed doors over the next year, the court said.
Xanana Gusmao, the former Timor-Leste president, welcomed the decision.
“Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea,” Gusmao said in a statement.
Labor frontbencher Penny Wong also welcomed the ruling and said the dispute had gone on too long.
“Labor committed in February this year to reaching a binding international resolution with Timor-Leste, either
through bilateral negotiation or international arbitration,” Wong said.
“In light of this ruling, we call on the government to now settle this dispute in fair and permanent terms; it is
in both our national interests to do so.”
The long-running dispute centres upon the maritime boundary between Timor-Leste and Australia, most
pointedly over control of the area where an estimated $40bn worth of oil and gas lies beneath the sea.
Timor-Leste argues the maritime boundary between it and Australia should be a median line equidistant
between the two countries, putting the vast majority of the exploitable area in its territory. This position is
supported by international law, the UN convention on the law of the sea, which Australia signed and ratified
in 1994.
But Australia says a 2006 temporary revenue sharing agreement (known as CMATS) that divides the revenues
– significantly in Timor-Leste’s favour, it argues – is valid, and should be honoured.
Timor-Leste argues that treaty should be scrapped because, six years after it was signed, it was revealed
Australia had bugged the Timor-Leste government’s cabinet room, with listening devices implanted by
Australian Security Intelligence Service agents pretending to be aid workers renovating the office.
Australia’s forced appearance at the permanent court of arbitration in The Hague is the first time any country
has been brought for “compulsory conciliation”. Timor-Leste says the action was necessary because of
Australia’s consistent refusal to negotiate on a permanent maritime boundary.
The dispute over the Timor Sea – more specifically the wealth that lies under it – has pre-empted and then
shadowed all of the short and chequered history between the independent Timor-Leste and Australia.
29
In 1975, as Portugal moved towards decolonisation, the resistance movement Fretilin declared Timor-Leste
independent. Nine days later, the newly free nation was invaded by Indonesia’s military in breach of
international law, and to widespread international condemnation.
In 1979 Australia became the only western nation to offer de jure recognition of Indonesia’s forced
annexation, so the two countries could begin negotiations over the Timor Sea’s resources.
The Timor Gap treaty was signed – the then foreign ministers Gareth Evans and Ali Alatas famously clinking
champagne glasses in a plane above the Timor Sea – between Australia and Indonesia in 1989. That treaty did
not establish a maritime boundary but provided for shared exploitation of petroleum resources in the part of
the seabed claimed jointly by both countries.
Australia was Timor-Leste’s saviour in 1999, leading the Interfet force which restored order in the country
after the vote for independence and retribution by pro-Indonesia militias.
But in 2002, just two months before Timor-Leste became independent, Australia secretly withdrew from the
maritime boundary dispute resolution procedures of the UN convention on the law of the sea, and the
equivalent jurisdiction of the international court of justice, so that it could not be compelled into legally
binding international arbitration. (Parliament was only told after the withdrawal had occurred.)
Timor-Leste’s first treaty – the Timor Sea treaty – signed in 2002, gave a 90-10 split, in Timor-Leste’s favour,
of revenues from a joint development zone in the Timor Sea.
The second, CMATS treaty – certain maritime arrangements in the Timor Sea – was signed in 2006, with both
sides agreeing to impose a 50-year moratorium on negotiating a permanent maritime border. CMATS gives
Timor-Leste 90% of the current oil revenues from the joint petroleum development area, and Australia 10%,
but a further treaty (Sunrise IUA) gives Timor-Leste only limited claim over future exploitation of the larger
Greater Sunrise field.
It was during the negotiations over CMATS that Australia bugged Timor-Leste’s cabinet room. Australia has
not admitted to the espionage, though it did raid the Canberra offices of Timor-Leste’s lawyer Bernard
Collaery, and seized the passport of the intelligence agent who blew the whistle on the spying operation.
Timor-Leste say the spying voids the treaty, which, it argues, was not negotiated in good faith.
30
Court Rules Australia Must Talk with East Timor Over Oil Fields
An international court rejects Australia’s claim it has no jurisdiction in a dispute with East Timor
http://www.wsj.com/articles/court-rules-australia-must-talk-with-east-timor-over-oil-fields-1474946041
Rebecca Thurlow, Wall Street Journal, 26 September 2016
SYDNEY—Australia will be forced into a conciliation process with East Timor over a disputed maritime
boundary determining access to potentially lucrative oil-and-gas fields, after an international arbitration court
rejected Australia’s claim the court had no jurisdiction.
East Timor asked the Permanent Court of Arbitration in The Hague to intervene in the long-running dispute as
it seeks to redraw a sea border between the two nations. If successful, East Timor could win a larger share of
oil-and-gas resources worth up to tens of billions of dollars.
In its decision, the court found it was “competent to continue with the conciliation process.” The court said it
would convene a series of confidential meetings between the parties over the course of the next year.
Australian foreign minister Julie Bishop said Canberra will fight to uphold a decade-old revenue sharing treaty
between the two nations. She said the recommendations from the conciliation process, unlike arbitration,
aren’t binding.
“We seek to uphold these treaty arrangements, which are consistent with international law and were
negotiated in good faith,” Ms. Bishop said. However, Australia accepts the commission’s decision to
intervene, and the country will engage in the conciliation process, she added.
Under a 2006 maritime treaty, Australia and East Timor agreed to equally split billions of dollars in royalties
from the Greater Sunrise field, which holds more than 5 trillion cubic feet of gas and condensate. The field is
to be jointly developed by partners including Australia’s Woodside Petroleum Ltd., ConocoPhillips of the
U.S., Royal Dutch Shell PLC and Japan’s Osaka Gas Co. Ltd.
However, the field’s development has been delayed by a number of disputes, including over East Timor’s
insistence that gas be piped and processed onshore to create a petroleum industry and employment in the
country, officially known as the Democratic Republic of Timor-Leste. The venture partners have said they
prefer to process the gas more cheaply using a vessel floating at sea.
East Timor’s other major concern is that almost 80% of the area designated for development of oil-and-gas
fields lies within Australian waters, while the rest is jointly administered by the two nations. The field is 93
miles south of East Timor and more than 280 miles off Australia’s northern coastline.
In hearings that began in The Hague arbitration court in late August, East Timor is arguing for the boundary to
be fixed halfway between the two countries, placing the Greater Sunrise field in Timorese waters.
Australia in turn argued that the arbitration court had no jurisdiction in the matter as Canberra had already
signed a treaty with Dili ruling out dispute settlement procedures.
The 2006 treaty put on hold for 50 years the right of both countries to discuss maritime boundaries or claim
territorial jurisdiction.
The existing boundary between the two countries was agreed with Indonesia in the 1971 and runs significantly
to the north of the median line between the two countries. East Timor gained independence from Indonesia in
2002.
31
Global court takes up Timor Leste, Australia sea border row
http://www.straitstimes.com/asia/australianz/global-court-takes-up-timor-leste-australia-sea-border-row
The Straits Times / AFP, 26 September 2016
THE HAGUE (AFP) - An international arbitration court agreed on Monday (Sept 26) to take up a decade-long
dispute over a maritime border between Australia and Timor-Leste which cuts through lucrative oil and gas
fields in the Timor Sea.
The Permanent Court of Arbitration "held that it was competent to continue with the arbitration process"
initiated by Timor-Leste against Canberra in April, the court based in The Hague said in a statement.
Timor-Leste last month urged the panel – the world’s oldest arbitration tribunal – to help end the dispute that
has soured relations between the two countries, saying negotiations have so far failed.
Australia in return argued it had no jurisdiction in the battle as Canberra had already signed a treaty with Dili
ruling out recourse to the court.
Dili on Monday welcomed the tribunal’s decision.
“Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea,” the country’s independence resistance hero and former prime
minister Xanana Gusmao said in a statement.
Canberra’s lawyers had argued it had also initiated talks with Dili through an exchange of letters in 2003 to try
to solve the dispute.
But a five-member PCA conciliation commission ruled the dispute should be settled under the UN Convention
of the Law of the Sea, rather than the treaty, called Certain Maritime Arrangements in the Timor Sea
(CMATS) and signed in 2006, which covers the vast Greater Sunrise gas field lying between the two nations.
The tribunal said the exchange of letters between Canberra and Dili “did not constitute an agreement...
because the exchange was not... legally binding.”
Timor-Leste, which only gained its independence from Indonesian occupation in 2002, is an impoverished
nation heavily dependent on oil and gas exports.
Talks between the two countries will now continue over the next year, the tribunal based in The Hague said,
but it stressed the meetings will be “largely in a confidential setting.”
32
Hague to arbitrate Aust, East Timor boundary
http://www.skynews.com.au/news/top-stories/2016/09/26/hague-to-arbitrate-aust--timor-boundary-aust-
dispu.html
Sky News / Reuters, 26 September 2016
The Permanent Court of Arbitration in The Hague will oversee a compulsory arbitration between East Timor
and Australia on their maritime boundary, rejecting Australia's objections.
East Timor asked for the process which could decide on which side of the border lies a large oil and gas field
over which the two countries have a revenue- sharing agreement. The island nation said Australian espionage
on its diplomats rendered recent agreements between them flawed.
Australia has resisted negotiating a permanent border until 2056 at the earliest.
The conciliation process will take place behind closed doors over the next year, the court said.
33
The Hague revives maritime border dispute between Timor-Leste and Australia
http://www.cnbc.com/2016/09/27/the-hague-revives-maritime-border-dispute-between-timor-leste-and-
australia.html
Nyshka Chandran, CNBC, 27 September 2016
A 14-year old border conflict between Timor-Leste, also known as East Timor, and Australia was revived by
The Hague's Permanent Court of Arbitration (PCA) on Monday.
Around 3,000 nautical miles separate Australia and Timor-Leste, an island in the Indonesian archipelago.
Between the two countries lie the Timor Sea, home to the Joint Petroleum Development Area (JPDA) that is
rich in oil and natural gas deposits. Next to the JPDA are the Sunrise and Troubadour gas fields, collectively
known as Greater Sunrise, that are worth an estimated $40 billion.
These fields are at the heart of the maritime dispute that has weighed on bilateral relations and holds the
potential to accelerate the nascent Timorese economy.
Image: The Permanent Court of Arbitration
Background
Under the 2002 Timor Sea Treaty, the Southeast Asian island receives 90 percent of revenues from the
JPDA's energy resources, with the remainder going to Australia.
However, only 20 percent of the Greater Sunrise fields lies inside the JPDA, according to the 2006
International Unitization Agreement on Sunrise (IUA), which allotted the remaining 80 percent to Australia.
Subsequently, a separate 2006 agreement [the Treaty on Certain Maritime Arrangements in the Timor Sea, or
CMATS] was signed to divide revenues from the Sunrise fields 50-50. CMATs also stipulated a 50-year
freeze on both countries from negotiating a permanent maritime boundary.
In 2013, the Timorese government accused Canberra of espionage to gain commercial advantage during
CMAT's negotiations, claiming that such a move invalidated the agreement.
In April this year, Timorese Prime Minister Rui Maria de Araujo initiated formal conciliation proceedings by
invoking the United Nations Convention on the Law of the Sea. He aims to establish an exclusive economic
34
zone, including a permanent boundary, one that will allow the island to gain control of the entire lucrative
Greater Sunrise fields.
Australia has argued that The Hague's international arbitration court does not have jurisdiction over the
dispute as per CMATs—a response that bears striking similarities to China's viewpoint when the same court
ruled on the South China Sea dispute. In an effort to appeal to the U.S. for help earlier this year, PM Araujo
also accused Australia of behaving like Beijing.
On Monday this week, the court refuted Canberra's claims, announcing that it was indeed competent to hold a
conciliation. Talks between the two countries will now continue over the next year.
[Photo: Activists attend a rally outside the Australian embassy in Dili, capital of Timor-Leste, on
February 23, 2016. Hundreds called on the Australian government to negotiate for the establishment
of permanent maritime boundaries between Australia and Timor-Leste.]
Implications
Home to a population of 1.2 million, Timor-Leste relies on oil and gas revenues from the JPDA for the
majority of its state budget, and the World Bank has long warned the middle-income country to diversify its
economy away from energy.
The country was a Portuguese colony until pro-independence fighters declared victory in 1975. Shortly
thereafter, Indonesia claimed the region as its 27th province, paving the way for a violent conflict between the
Indonesian military and separatist forces. It was only in 2002 that East Timor became a sovereign state once
Jakarta relinquished control.
"Development of the Greater Sunrise gas field is the key to the economic future of Timor-Leste," Rebecca
Strating, lecturer at Melbourne's La Trobe University, argued in a note last week.
PM Araujo is using the conciliation as part of a broader diplomacy strategy to pressure the Turnbull
government, using activist-style rhetoric that positions the dispute as the final stage of Timor-Leste's
sovereignty, Strating explained.
But the island is running out of time.
It's estimated that the Bayu-Undan oil field, one of the government's biggest income generators located in the
JPDA, will stop producing in 2022, Strating flagged. Moreover, the country's $16 billion sovereign wealth
fund—known as the Timor-Leste Petroleum Fund—could be depleted by 2025, she noted.
The fund was among the top five best performers in the 2013 Resource Governance Index, a ranking
developed by the non-profit Natural Resource Governance Institute.
"Even if Timor-Leste wins the conciliation, it will mean going back to square one with Greater Sunrise
negotiations. It is difficult to see how this presents a practical, long-term solution for resolving the dispute,"
said Strating.
On Monday, Australian Foreign Minister Julie Bishop noted the current arrangements were hugely beneficial
to the former Portuguese colony but said her government would engage in good faith during the conciliation
process.
"There is an inescapable perception that Australia is denying its tiny, impoverished neighbor its sovereign
birthright to determine its boundaries, control its own resources, and shape its own destiny," Ben Saul, Challis
chair of international law at the University of Sydney, wrote in an August note. "Australia should stop
obstructing Timor and help it to secure its borders and its future. This week's conciliation gives Australia a
new chance to do the right thing."
35
Legal experts say July's South China Sea ruling could offer insight into the final verdict on the Timor Sea
matter.
By denying China's territorial claims, the tribunal raises the prospect that Timor-Leste might successfully
initiate an arbitration against Australia, corporate law firm Gilbert + Tobin explained in a report.
36
Hague court to arbitrate in East Timor-Australia maritime border dispute
Australia had previously argued that the Permanent Court of Arbitration (PCA) based in The Hague - the
world’s oldest international tribunal - had no jurisdiction in the row
http://www.scmp.com/news/asia/southeast-asia/article/2022669/hague-court-arbitrate-east-timor-australia-
maritime-border
South China Morning Post / AFP / Reuters, 26 September 2016
The tribunal that ruled China’s extensive claims to the South China Sea were invalid is taking up another
regional sea border row.
In a blow to Australia, the world’s oldest international court has agreed to take up a case pitting tiny East
Timor against its giant neighbour stepping into a decade-long dispute over a maritime border which cuts
through lucrative oil and gas fields.
The Permanent Court of Arbitration (PCA) “held that it was competent to continue with the conciliation
process” initiated by East Timor against Australia in April, the court based in The Hague said.
East Timor last month urged the panel - the world’s oldest arbitration tribunal - to help end the dispute that
has soured relations between the two countries, saying negotiations have so far failed.
The boundary dispute between East Timor and Australia centres on a demand from East Timor that the border
of the oil field between the two countries be redrawn.
Australia in return argued it had no jurisdiction in the battle as Canberra had already signed a treaty with Dili
ruling out recourse to the court.
The PCA has not shied away from stepping into complex diplomatic battles.
Earlier this year it sparked fury in Beijing by ruling in a case brought by the Philippines that China’s claims to
a vast swathe of the resource-rich South China Sea were invalid. It was a major setback for Beijing, which has
ignored the decision.
Australian Foreign Affairs Minister Julie Bishop was chided in February by China for saying the Philippines
had the right to take China to the same international arbitration over their conflicting South China Sea claims.
East Timor, which only gained its independence from Indonesian occupation in 2002 and is an impoverished
nation heavily dependent on oil and gas exports, welcomed Monday’s decision by the tribunal.
“Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest until we have
our sovereign rights over both land and sea,” the country’s independence resistance hero and former prime
minister Xanana Gusmao said in a statement.
Bishop said Canberra “accepts the commission’s decision and will continue to engage in good faith as we
move to the next phase of the conciliation process.”
“We are committed to working together to strengthen our relationship and overcome our differences in the
Timor Sea,” she added.
Canberra’s lawyers had argued it had also initiated talks with Dili through an exchange of letters in 2003 to try
to solve the dispute.
The tribunal said the exchange of letters between Canberra and Dili “did not constitute an agreement...
because the exchange was not... legally binding.”
37
And the PCA’s five-member Conciliation Commission ruled the dispute should be settled under the UN
Convention of the Law of the Sea, rather than the 2006 treaty - called Certain Maritime Arrangements in the
Timor Sea (CMATS) - which covers the vast Greater Sunrise gas field lying between the two nations.
That treaty set out a 50-50 split of proceeds from the vast maritime energy fields between Australia and East
Timor estimated at some A$40 billion (US$36 billion).
East Timor has also called for CMATS to be torn up after accusing Australia of spying to gain commercial
advantage during the 2004 negotiations.
Dili however officially dropped its spying case against Canberra before the UN’s International Court of
Justice in June 2015 after Australia returned sensitive documents.
Talks between Timor and Australia will now continue over the next year, the tribunal based in The Hague
said, but it stressed the meetings will be “largely in a confidential setting.”
The commission will be involved “in a process for creating a positive relationship between the two sides to try
and bring them together to the table,” said Aaron Matta, senior researcher at the Hague Institute for Global
Justice think-tank.
This article appeared in the South China Morning Post print edition as:
East Timor to take Canberra to court
38
Hague court to arbitrate in East Timor-Australia maritime border dispute
http://www.japantimes.co.jp/news/2016/09/27/asia-pacific/crime-legal-asia-pacific/hague-court-arbitrate-east-
timor-australia-maritime-border-dispute/#.V-rMe_krLIU
Japan Times / Reuters, 27 September 2016
AMSTERDAM/SYDNEY – The Permanent Court of Arbitration in The Hague has said it will oversee a
compulsory conciliation between East Timor and Australia on their maritime boundary, rejecting Australian
objections.
East Timor asked for the process that could decide on which side of the border lies a large oil and gas field
over which the two countries have a revenue-sharing agreement. The small island nation said Australian
espionage on its diplomats rendered recent agreements between them flawed.
The decision will exacerbate a rare diplomatic rift between Australia and its neighbor 610 kilometer (380
miles) to the north, which it supported during a claim for independence from Indonesia in the late 1990s.
Australia has resisted negotiating a permanent border until 2056 at the earliest.
Australia and East Timor will now engage in a conciliation process that will take place behind closed doors
over the next year, the court ruled late on Monday.
The Australian foreign minister and attorney general said in a statement existing treaties between the countries
had been “hugely beneficial” to East Timor but that “Australia accepts the commission’s decision and will
continue to engage in good faith.”
“We are committed to working together to strengthen our relationship and overcome our differences in the
Timor Sea,” the statement said. It also said the report to be produced by the commission would not be legally
binding.
East Timor Minister of State Agio Pereira welcomed the decision.
“This process is an opportunity to set a good example in our region and we will engage with respect for the
commission and its recommendations, ever conscious of the importance of maintaining the best possible
relationship with our close neighbor Australia,” Pereira said in a statement.
39
Timor-Leste founders talk nation-building
Former president, current prime minister share experiences shaping 14-year-old democracy
http://www.browndailyherald.com/2016/09/28/timor-leste-founders-talk-nation-building/
Rachel Gold, Brown Daily Herald, 28 September 2016
Rui Maria de Araújo, prime minister of the sixth constitutional government of Timor-Leste, speaks in the Joukowsky Forum during a
discussion examining the birth and development of the tiny island nation.
In the 1990s, Brown’s campus was a hotbed of activism on behalf of Timor-Leste, the Southeast Asian island
then occupied by — and subject to human rights violations committed by — Indonesia. Over 15 years later,
the leaders of what is now the Democratic Republic of Timor-Leste arrived in Providence to reflect on the
transition from a political movement to a sovereign nation.
In a roundtable hosted by the Watson Institute for International and Public Affairs titled “Back to Brown:
Reconnecting with Timor-Leste,” Edward Steinfeld, director of the institute, and Robert Blair, assistant
professor of political science and international and public affairs, were joined in dialogue by Timor-Leste’s
Prime Minister Rui Maria de Araújo and founding father Xanana Gusmão.
Perhaps more than anyone else, Gusmão’s life is intertwined with that of his young nation. Gusmão organized
the resistance movement against the Indonesians, working from his jail cell after being sentenced to life in
prison in 1993. When the country was born in 2002, he was elected its first president. Gusmão was later
elected prime minister and is now minister of planning and strategic investment, as well as international
emissary for his country, development and democracy.
It is this spirit of internationalism that brought the envoy from Timor-Leste to Providence. “There has always
been a special connection between Rhode Island and Timor-Leste,” Araújo said. “It is embodied by professors
and students here at Brown who fought and fought to put Timor-Leste on the national consciousness of the
(United States) during the years when we were under occupation.”
During the peak of the tiny island’s resistance — which displaced about one third of Timor-Leste’s population
— Timorese leaders were aware of the expressions of concern surfacing around the world, Araújo said. This
solidarity movement took hold in Rhode Island, where then-U.S. Sen. Claiborne Pell, D-RI, and then-U.S.
Rep. Jack Reed, D-RI, advocated for the United States to lend its muscle to the restoration of Timor-Leste’s
independence.
“Early this year, when I finally had a chance to thank … Reed in person, he told me the story of how he first
heard about Timor-Leste’s struggle when a group of students and professors from Brown came to see him at
his little district office in Cranston,” he said. “So let me at last say, as the prime minister of free Timor-Leste,
thank you, Brown University.”
40
The nation — which was declared independent after a 1999 referendum, placed under a U.N. transitional
government that year and officially established as a constitutional government in May 2002 — is nearing its
15th birthday. But given the rapid growth of the country’s budget and the success of its democracy, Timor-
Leste shows that “the age of a country doesn’t have anything to do with wisdom that country can pass on to
us,” Steinfeld said.
Today, the nation faces a myriad of challenges, including “crippling uncertainty for the economy,” which is
extremely dependent on oil reserves in the surrounding waters; a lack of critical infrastructure, largely due to
the slash-and-burn wrought by the Indonesians before relinquishing control and a conflict with Australia over
maritime borders, which will be mediated by The Hague in the upcoming year, according to a decision
announced this week. But as evidenced by The Hague intervention, international systems have been and must
remain invested in the nation, Araújo said.
Many in the post-Cold War world questioned the relevance of international institutions, Araújo said, offering
the words of former U.N. Secretary General Kofi Annan as a rebuke to these doubts: “Never before has the
world united with such firm resolve to help one small nation re-establish itself,” Araújo said.
Yet scholars are hesitant to label the Timor-Leste intervention a complete success. There have been only a few
other instances where the United Nations has “exercised such a heavy hand,” Blair said, noting that the United
Nations failed to adapt to indigenous institutions — particularly when it came to traditional systems of
adjudication — and that the U.N. peacekeeping mission did not end until 2012.
Under a certain light, the U.N. forces could be seen as an extension of the legacy of occupation, Gusmão said.
“Yes, it was the first time that (the United Nations) played this kind of role in a nation,” he said. “In the
beginning we were making noise — ‘are you coming to colonize us?’ There was a group of (East) Timorese
(citizens) who said, ‘We kick out the Portuguese, (who occupied the nation for over 200 years,) we kick out
the Indonesians, and now we are going to be colonized by (the United Nations).’”
But the nation’s first president — whose serious reflections turn animated when he speaks to the future,
becoming especially fiery when he exhorts young people to action — is a believer in the necessity of
internationalism and the potential for peace.
“When South Sudan, now the youngest state in the world, got independence, we sent a mission to participate
in celebrations,” Gusmão said. Once South Sudan started to see violence, Gusmão himself visited the country
to offer counsel. “When (Timor-Leste) came in 2006 to a crisis, we did everything to avoid it. They didn’t.
Now it is a mess with one million refugees.”
Throughout a day of discourse — which included a lunch discussion among the visitors, University faculty
members, graduate students and undergraduates — the ideals of diplomacy, peace and international
institutions poured forth.
“These are the values (that) animate my young country,” Araújo said. “I am here speaking for not just a young
country, but a young democracy that wants to move from being a post-conflict state to being a successful
state; a country that wants self-sufficiency, not charity; a country that believes in the rule of law.”
“Your actions bear all of our hopes and aspirations for what development can deliver and what justice can
deliver,” Steinfeld said.
Speaking to students as he left the room, Gusmão said: “The world’s future is in your hands and in your
brains.”
41
East Timor Takes Maritime Dispute With Australia to UN Court
http://www.voanews.com/a/east-timor-takes-maritime-dispute-with-australia-in-un-court/3528236.html
Phil Mercer, VOA News, 28 September 2016
SYDNEY —
East Timor has accused Australia of being a bully as the International Court of Arbitration in the Netherlands
prepares to hear a decade-long dispute over the sharing of oil and mineral wealth in the Timor Sea.
East Timor — also known as Timor-Leste — wants the International Court of Arbitration in The Hague to
decide which country owns a large undersea oil and gas field. The East Timorese government believes
Australia is receiving more than it is entitled to under an international convention.
The court has said it will oversee a compulsory conciliation between the two countries on their disputed
maritime boundary, rejecting objections from Australia.
The judicial process could decide on which side of the maritime border lies a large oil and gas field over
which the two nations have a revenue-sharing agreement.
Both sides will now enter into a negotiation process that will take place behind closed doors over the next 12
months.
Jose Ramos Horta, the former East Timorese president, says his country is standing up to a bully.
“Throughout the Pacific region, Southeast Asia, people [are] looking at Timor-Leste with admiration. Wow,
they have the courage, the guts to stand up to this bullying regional power [and] taking immense risk,” he
said.
Australian officials have said that existing bilateral treaties between the Asia-Pacific neighbors had been
"hugely beneficial,” but that Canberra would accept the court’s decision.
The case has strained relations that have previously been close after Australia supported East Timor’s
successful campaign for independence from Indonesia in the late 1990s. The young nation is beset by serious
economic problems, with annual per capita income estimated at around $5,600.
In July, the U.N. Permanent Court of Arbitration ruled against Chinese claims to rights in the South China
Sea, supporting a case brought by the Philippines. In that case, Beijing refused to participate and has said it
does not recognize the ruling.
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International court dismisses Australian challenge over Timor Sea border dispute
https://www.wsws.org/en/articles/2016/09/28/timo-s28.html
Patrick Kelly, World Socialist Website, 28 September 2016
Dismissing an Australian government challenge, the Permanent Court of Arbitration in The Hague issued a
ruling Monday upholding its authority to consider a case brought by East Timor over the disputed maritime
border in the Timor Sea.
The judgment is a significant blow to the Australian government. It marks another exposure of Canberra’s
contempt for international law and its rank hypocrisy over the resolution of maritime disputes. Earlier this
year, the government joined Washington in backing a dubious Permanent Court of Arbitration (PCA) finding
against China over territorial disputes in the South China Sea. The US-backed case, brought by the former
Philippine administration, was aimed at bolstering the Obama administration’s aggressive drive to maintain its
military hegemony in the Asia Pacific.
While Canberra has demanded that China abide by the arbitration ruling, in 2002 Australia declared that it
would not recognise any arbitrated case involving its own disputed maritime border with East Timor. This
unilateral withdrawal from a key aspect of the United Nations Convention on the Law of the Sea (UNCLOS)
was aimed at preventing any legal scrutiny of the Australian government’s thuggery and intimidation of East
Timor during negotiations over the division of multi-billion dollar oil and gas fields in the Timor Sea.
Unable to pursue compulsory arbitration, the East Timorese government has used a never-before invoked
clause of UNCLOS, allowing for compulsory conciliation. This involves The Hague court considering the
rival sea boundary claims and issuing non-binding recommendations that are supposed to be the basis of a
negotiated settlement.
Even this limited legal mechanism is regarded as a threat by the Australian government. It sought to have the
case thrown out on the grounds that the PCA was not legally authorised to hear it.
The 33-page ruling issued by the court on Monday dismissed this claim, sharply rejecting all the arguments
advanced by the government’s legal team.
These arguments centred on the supposed sanctity of the 2006 Treaty on Certain Maritime Arrangements in
the Timor Sea (CMATS), specifically, one of the treaty’s clauses that stated the maritime boundary between
Australia and East Timor would be left unresolved for 50 years. Australian government lawyers declared that
the East Timorese were “violating treaty commitments,” adding that their challenge to the court was
“motivated by a serious regard for principle … at a time when the rules-based order globally is under serious
challenge, it is vital that countries stand by their treaty commitments.”
These statements brazenly flew in the face of Australian imperialism’s record in Timor. In 1975 the then
Labor government encouraged the Indonesian military regime’s invasion of the former Portuguese colony.
Subsequent Labor and Liberal-National governments collaborated with Jakarta in carving up the lucrative
energy reserves in the Timor Sea. In 1999, Canberra made a tactical shift, endorsing East Timorese
independence and launching a military intervention into the territory in order to defend its predatory economic
and geostrategic interests. Subsequent negotiations with the Timorese government featured Australian threats
to crash the Timorese economy by sabotaging new oil and gas production, and countless dirty tricks, including
the planting of surveillance devices in Timorese government offices by Australian intelligence agents posing
as aid workers.
The PCA’s Conciliation Commission, chaired by former Dutch diplomat and UN jurist Peter Taksøe-Jensen,
gave short shrift to every aspect of the Australian challenge to its competence to hear the case.
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Under international law, a maritime border case cannot be brought to The Hague if two states have agreed
upon another means of settling the dispute and that this agreement excludes other procedures. Australian
government lawyers claimed that an exchange of letters in 2003 between John Howard and Mari Alkatiri, then
Australian and East Timorese prime ministers, constituted a legal agreement to determine a maritime
boundary through negotiation. The PCA dismissed this, explaining that the letters did not constitute a legally
binding agreement and therefore had no bearing.
Australia’s lawyers also maintained that the CMATS treaty bolstered the 2003 correspondence, with the 50-
year exclusion of settling on maritime borders supposedly blocking any potential involvement of The Hague.
The PCA also rejected this argument. It noted that “what CMATS is not—and what Article 281 [of UNCLOS]
requires—is an agreement ‘to seek settlement of the dispute by a peaceful means of [the Parties’] own choice.’
CMATS is an agreement not to seek settlement of the Parties’ dispute over maritime boundaries for the
duration of the moratorium.”
The court stated that the conciliation process had to be completed within 12 months.
Xanana Gusmão, the former Timorese president and prime minister who headed the country’s legal delegation
in The Hague, issued a statement after Monday’s judgment. “Just as we fought so hard and suffered so much
for our independence, Timor-Leste will not rest until we have our sovereign rights over both land and sea,” he
said.
In reality, the Timorese case before the PCA is a desperate manoeuvre aimed at placing some pressure on the
Australian government and the American-Australian oil companies that have the rights to the Timor Sea’s
energy reserves. Dili has the right to abrogate the CMATS treaty, but does not want to alarm transnational
corporate investors by doing so unilaterally.
Timorese lawyers in The Hague told the court that government ministers recently travelled to oil and gas
company headquarters in Australia and the US, seeking input on a potential post-CMATS treaty that “meets
the investors’ requirements.”
The Timorese government sought to curry favour with the Australian government by dropping a legal case it
initiated over Canberra’s bugging operation during the CMATS negotiations. The case triggered provocative
police and intelligence raids in 2013 targeting an Australian lawyer representing East Timor, Bernard
Collaery, and a retired Australian Secret Intelligence Service (ASIS) officer who blew the whistle on the
bugging operation.
The Timorese ruling elite is desperate to secure additional investment in the Timor Sea—both to further line
its own pockets, and to stave off the threat of outright state collapse. Currently 95 percent of government
revenue is derived from royalties generated by the Bayu-Undan oil and gas project, which is forecast to run
dry in less than a decade. The country’s sovereign wealth fund is currently worth $16 billion, but the global
plunge in oil and gas prices has resulted in government spending exceeding limits aimed at ensuring the
fund’s ongoing growth.
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Wordpress Blogpost
https://markskulley.wordpress.com
Mark Skulley, 26 September 2016
The Permanent Court of Arbitration has thrown out the Turnbull government’s argument it did not have
jurisdiction to hear a dispute about disputed maritime boundary between Timor-Leste and Australia.
In a decision published on Monday the five-member Commission said it was competent with respect to the
compulsory conciliation over the maritime boundary.
“There are no issues of admissibility or comity that preclude the Commission from continuing these
proceedings,” the decision.
Under the ruling, the 12-month period for the compulsory conciliation will run from the date of the arbitration
which was dated September 19.
The conciliation will not be binding on the parties, but the Turnbull government will come under increased
international scrutiny during the process, which is conducted under the UN
Convention on the Law of the Sea (UNCLOS).
The Timor-Leste government welcomed the decision, which followed a three-day hearing held in The Hague.
Timor’s Minister of State Agio Pereira – who is also their agent in the proceedings – said: “This process is an
opportunity to set a good example in our region and we will engage with respect for the commission and its
recommendations, ever conscious of the importance of maintaining the best possible relationship with our
close neighbour Australia.”
Chief Negotiator and former Prime Minster, Xanana Gusmão thanked the Commissioners for their expertise
and noted “Just as we fought so hard and suffered so much for our independence, Timor-Leste will not rest
until we have our sovereign rights over both land and sea.”
Before the decision, Foreign Affairs Minister Julie Bishop and Attorney-General George Brandis said that
Australia would abide by the Commission’s finding on jurisdiction but noted the final report was not binding.
Link to further information on the proceedings:
http://www.pcacases.com/web/view/132
Link to today’s decision:
http://www.pcacases.com/web/sendAttach/1921
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Green light. Commission proceeds. (Blogpost)
http://timfo.org/new-blog-avenue/2016/9/26/green-light-commission-proceeds
Timor Sea Forum, 26 September 2016
The Conciliation Commission issued its Decision on Competence on the 19th of September and it was made
public today. The Permanent Court of Arbitration put out a Press Release announcing that "In its Decision, the
Commission held that it was competent to continue with the conciliation process.”
This means the challenges of Australia to the Commission’s existence have been overcome and the
proceedings concerning the establishment of a maritime boundary between Australia and East Timor will
continue.
The Government of Timor-Leste responded with a media release saying:
Now one question for me is "how will the Australian Government respond?"
In their challenges Australia made it clear that they do not want to be a part of this process. Julie Bishop
herself was tweeting to remind everyone that the outcome was not binding. The Decision of the Commission
has something to say about the engagement of the parties:
So if Australia is committed to engage in 'good faith' does that mean that they will take on board the
suggestion of the Commission in paragraph 108 and participate with an acceptance of the process, willingness
to seek agreement and with an intention to give serious consideration to the recommendations of the
commission?
We have not yet seen the official response from the Australian Government, but if it involves reiteration of the
'non-binding outcome of the process' it would not be a sign of 'good faith' and would fly in the face of
Australia's loud endorsement of the United Nations Convention on the Law of the Sea as the dispute
resolution solution for the South China Sea. After all this Conciliation Commission is set up under UNCLOS
to help solve disputes and [Decision Paragraph 42] "provides for compulsory conciliation where a State elects
to exclude sea boundary delimitation from arbitral or judicial settlement.” This is the exclusion Australia
made in a targeted way two months prior to the independence of Timor-Leste.
It's no wonder that Senator Penny Wong has jumped in to say:
46
Let's get on with it. I'm for that.
But doesn't the proceedings mean we all have to wait 12 months for the report of the Commission due on the
19th of September 2017? No.
UNCLOS Annex V notes that the Commission’s report "shall record any agreements reached and, failing
agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such
recommendations as the commission may deem appropriate for an amicable settlement.”
So agreements can be made in the process and will be encouraged.
I think in the coming weeks and months we need to make it clear to the Australian Government that we want
them to stop avoiding this issue and get on with it. There are activities coming around the country to help you
do that. One of the best ways in the 'old school' method of going to talk to your local federal member to ask
them about their position on a maritime border in the Timor Sea.
Let's get on with it.
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After court ruling, Australia and East Timor discuss maritime boundary
http://www.reuters.com/article/us-australia-timor-arbitration-idUSKCN12D0T9?il=0
Anthony Deutsch and Tom Heneghan, Reuters, 13 October, 2016
Australia and East Timor aim for an agreement over the disputed maritime boundary in resource-rich
waters between their countries, a court said on Thursday, signalling a deal could be reached by next
September.
Confidential meetings between the two countries have been "very productive" and would continue
next year, the Permanent Court of Arbitration in The Hague said in a statement.
The court ordered compulsory arbitration in the case last month after East Timor requested the
process against objections from Australia, which negotiated a revenue sharing agreement that gave it
until 2056 to settle the boundary issue.
Australia played a critical role in East Timor's independence from Indonesia in 2002 and shortly after
that negotiated the revenue sharing deal for the large Greater Sunrise oil and gas field. East Timor
calls the deal unfair.
"All agreed we should aim to reach agreement within the timeframe of the conciliation process," the
court said, referring to the compulsory arbitration. That process has a deadline of Sept. 19, 2017.
"I was very pleased to see a sincere willingness on both sides to come together in a spirit of
cooperation," said Peter Taksoe-Jensen, who headed the arbitration talks.
"Both sides are to be commended for being willing to move beyond past differences and work hard
to create conditions conducive to achieving an agreement."
East Timor appealed to the court for the arbitration that could determine the border through the
Greater Sunrise oil and gas field. It has said that Australian espionage on its diplomats rendered
recent agreements on it flawed.
East Timor says the boundary should fall halfway between it and Australia, which had argued that
defining the border that way could prompt Indonesia to also seek to shift its sea border and gain
ownership of disputed oil fields.
Greater Sunrise contains an estimated 5.1 trillion cubic feet of gas and 226 million barrels of
condensate, although the border dispute and low gas prices mean its development is on hold.
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Timor Sea dispute: Timor-Leste is running out of time
https://www.lowyinterpreter.org/the-interpreter/timor-sea-dispute-timor-leste-running-out-time
Bec Strating, Lowy Interpreter, 11 October 2016
Earlier this year, Timor-Leste initiated United Nations Compulsory Conciliation (UNCC)
proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) to assist in
resolving its maritime boundary dispute with Australia. While Australia disputed the jurisdiction of
the UNCC, the Conciliation Commission issued a decision last month that it was competent to
continue with conciliation proceedings.
This decision was met with commentary that presented this as a win for ‘David’ (Timor-Leste)
against ‘Goliath’ (Australia).
However, it's not clear that the Conciliation process will help resolve the Timor Sea dispute, as it
does not circumvent Timor-Leste’s key problem: Australia’s exclusion of binding compulsory
dispute resolution procedures. Looking ahead, it is important to consider the contribution that the
UNCC might make to possible avenues for dispute resolution.
The UN Conciliation Commission
Many reports in the Australian media tended to conflate the UNCC with the now relatively famous
Permanent Court of Arbitration (PCA) (see here, here and here). With the agreement of both parties,
the PCA acts as a Registry in the UNCC. However, the UNCC itself is not a court or an arbitral
tribunal, a distinction which matters for its prospective role in dispute resolution.
Article 287 of UNCLOS specifies the courts or tribunals that can settle disputes through a binding
decision: the International Tribunal for the Law of the Sea (ITLOS); the International Court of
Justice (ICJ); or an arbitral tribunal or special arbitral tribunal constituted under UNCLOS. In 2002,
Australia excluded compulsory procedures entailing binding decisions in relation to maritime zones,
which is permitted under UNCLOS. Consequently, the international courts and tribunals listed in
Article 287 do not have jurisdiction to hear seabed boundary delimitation disputes involving
Australia.
The UNCC was established under UNCLOS to assist states to reach an amicable settlement of
relevant disputes. A Commission of five conciliators will produce a report (due in September 2017)
for Australia and Timor-Leste to assist bilateral negotiations. Under UNCLOS, states are obliged to
participate in compulsory dispute resolution procedures if parties have failed to reach agreement
through peaceful means (for example, bilateral negotiations).
Unlike the decision of courts or tribunals, the UNCC report will not be binding on either party.
Future meetings of the UNCC will be conducted confidentially and most likely not at The Hague. In
the short-term, the Timorese government might find it difficult to keep the UNCC on the Australian
media agenda.
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Under UNCLOS, there is an obligation for Australia to negotiate with Timor-Leste in ‘good faith’ on
maritime boundaries. The UNCC proceedings will compel the Australian government to reverse its
current refusal to discuss boundaries with Timor-Leste. However, while Australia has an obligation
to negotiate and pursue those negotiations as far as possible, it does not have an obligation to reach
an agreement based on the report.
Pathways to dispute resolution
As the Timor Sea conciliation process is unprecedented, it is difficult to precisely anticipate how it
will function. However, we know that the fundamental purpose of UNCC is to conciliate, not
arbitrate. It must assist state parties to find a pathway through maritime disputes in order to achieve a
negotiated settlement. Arguably, then, the UNCC is obliged to find a ‘middle-ground solution’ that
will best support dispute resolution, making it likely that the report will aim to get both states to
compromise.
Inevitably, the dispute will return back to the realm of bilateral diplomacy. The question is whether
either state is likely to compromise in the next round of negotiations.
Australia and Timor-Leste are engaged in a dispute that entails different perspectives on points of
maritime law. Since 2012, Timorese governments have reinvigorated demands for permanent
maritime boundaries. Its public diplomacy campaign has co-opted civil society narratives that
boundaries are fundamental for ‘full sovereignty’. If permanent boundaries are the goal of the
Timorese government, then presumably it would be willing to compromise its territorial claims in
order to reach a boundary settlement with Australia.
On the maritime boundary between Australia and Timor-Leste, Australia favours principles of
‘natural prolongation’, which provides it seabed territory that extends to the edge of a geomorphic
continental shelf (to the Timor Trough, see map). In contrast, Timor-Leste favours a ‘median’ line,
which is supported by post-UNCLOS jurisprudence.
Source: DFAT
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Hypothetically, the conciliation might recommend that the states take the median line as the basis for
its negotiation. In this case, the UNCC report could advance public pressure on Australia,
contributing to Timor-Leste’s public diplomacy campaign.
But, crucially, the negotiation process would not end there.
Timor-Leste’s shift towards permanent maritime boundaries has been motivated by the pursuit of the
lucrative Greater Sunrise gas field, in order to build an export pipeline to support the onshore
processing plans that are already underway. The Treaty of Certain Maritime Arrangements in the
Timor Sea (CMATS), signed and ratified by Australia and Timor-Leste, was designed to oversee the
joint development of the disputed Sunrise field. Timor-Leste now considers this treaty invalid. The
contested line that determines Sunrise ownership is the eastern lateral (see map).
Australia justifies its claim to roughly 80% of the field on the basis of ‘simple equidistance’. In
contrast, Timor-Leste’s Sunrise ownership claim is based on a belief that the eastern lateral should be
drawn further to the east.
Problematically, UNCLOS provides few substantive rules in seabed boundary delimitation beyond
an agreement that provides an ‘equitable solution’.
If the report recommends that Sunrise be split 50:50, the real question is whether the Timorese
government would be willing to compromise half the field. It runs the risk of domestic political
backlash if it gives up half of what has been presented as a sovereign entitlement. Its ambitious
economic plans are even less viable if it only attains half of Sunrise.
The problem with the Timorese government’s foreign policy strategy is that Timor-Leste is running
out of time, and Australia knows it. The Bayu-Undan oil field will stop producing in 2022 and the
$16 billion sovereign wealth fund could be depleted by 2025. From 2010 to 2015, the revenues that
flowed from the Joint Petroleum Development Area furnished approximately 90% of Timor-Leste’s
state budget, and 70% of total GDP.
Timor-Leste’s bargaining vulnerabilities means it is likely that Australia will prolong boundary
negotiations for as long as possible. There is no precedent for what happens if negotiations fail again.
Article 298 of UNCLOS suggests that if the negotiations do not result in an agreement, the parties
‘by mutual consent’ would submit to the ICJ, ITLOS or a tribunal. But the key here is ‘mutual
consent’: that sovereign states cannot be brought before an international court without its consent is a
key principle of international law.
Ultimately, the UNCC does not circumvent Australia’s exclusion. Even if Australia did consent, a
court could arguably not rule without the involvement of Indonesia. A resolution could take years.
In terms of functional sovereignty, Timor-Leste risks becoming a failed state if a development
agreement is not reached soon.