Some of the most powerful politicians in the US and Australia met in Sydney last week and reached an agreement that I hope signals a return to the high point of Canberra’s relations with Timor-Leste (East Timor) — the moment in 1999 when prime minister John Howard sent the Australian Army to Timor-Leste to stop the devastating violence unleashed by our vote for independence from Indonesia. US Secretary of State John Kerry and Defence Secretary Chuck Hagel met Foreign Affairs Minister Julie Bishop and Defence Minister David Johnston under the umbrella of the annual Australia-US Ministerial Consultations.
US Secretary of State John Kerry and Defence Secretary Chuck Hagel met Foreign Affairs Minister Julie Bishop and Defence Minister David Johnston under the umbrella of the annual Australia-US Ministerial Consultations.
While most media attention was on new joint defence arrangements, the section of the AUSMIN joint communique released after the meeting concerning the maritime dispute in the South China Sea caused a stir in Timor-Leste.
Specifically, the sentence that “called on claimants to refrain from actions that could increase tensions and to clarify and pursue claims in accordance with international law, including as reflected in the Law of the Sea Convention”.
This sentence was warmly welcomed in Timor-Leste because it marked a radical departure from Australia’s position in relation to its maritime Timor Sea boundary.
The perception that Australia was a great friend and ally of the Timorese people suffered a blow on March 21, 2002.
On that date, just two months before Timor-Leste became an independent nation and eight months after Australia and the UN Transitional Administration in East Timor had signed a temporary boundary agreement that gave Australia the lion’s share of waters (and oil and gas resources) in the Timor Sea, then foreign minister Alexander Downer quietly announced that Australia would no longer be subject to the jurisdiction of International Court of Justice or the International Tribunal for the Law of the Sea for disputes regarding maritime boundaries.
This decision only made sense if Australia knew the claim it had made to areas in the Timor Gap, on Timor-Leste’s side of the median line, would not stand up in the international courts. The Timor-Leste government hopes Australia’s recent call on parties in the South China Sea to settle the dispute “in accordance with international law” is a prelude to Australia resubmitting to the jurisdiction of the ICJ for maritime matters.
Of course, we hope to be able to agree on a permanent maritime boundary with Australia by negotiation, but if we cannot, it is important for both nations that an independent international umpire could be called upon to decide where to draw the line.
Some history is necessary here to explain why Australia’s decision to withdraw from the jurisdiction of international maritime tribunals was such a shock. Following our independence from Indonesia, UNTAET and Australia signed an agreement in 2001 that locked the new nation of Timor-Leste into a petroleum sharing zone arrangement based on one negotiated earlier between Australia and Indonesia. It was when there was talk of challenging this arrangement at the ICJ that Australia, on the eve of the birth of our new nation, withdrew from the court’s maritime jurisdiction.
According to international case law, then and now, the accepted approach when drawing a permanent maritime boundary is to base it on a median line equidistant from the two states. Which is why Timor-Leste has always sought sovereignty to the median line. But Australia claims the boundary line should be two thirds of the way to Timor-Leste, giving a much bigger area to Australia.
Timor-Leste is willing to negotiate to permanently close the gap in Australia’s maritime boundary (as stated above, we currently only have a petroleum sharing arrangement) so that both our nations can have sovereignty over their respective waters and seabed resources.
We also want to provide security of tenure for resource companies operating in the Timor Sea.
And we hope that Australia’s recent comments in relation to the maritime dispute in the South China Sea signal a willingness on Australia’s part to resubmit to the maritime jurisdiction of the ICJ.
As it is, we have gone to court not to determine a maritime boundary but to seek the return of documents belonging to a lawyer acting for Timor-Leste that were seized by the Australian spy agency ASIO and Australian Federal Police in December last year. It would be a much better scenario for both our nations if we were seeking the court’s determination on a permanent maritime boundary.
*Agio Pereira is Timor-Leste’s Minister of State and in The Australian