Information about the Treaty between Australia and Timor-Leste on
Click on either map to see it larger. The one above shows Timor-Leste's maritime rights, while the one below shows the CMATS compromise on resource sharing.
The CMATS treaty was signed by Foreign Ministers Alexander Downer and Jose Ramos-Horta in Sydney on 12 January 2006, with Prime Ministers John Howard and Mari Alkatiri looking on, as shown in the photo at left. In 2006, La'o Hamutuk published an extensive analysis of the treaty and its history (also Bahasa Indonesia), which was extended in 2007. In 2009 we issued a two-page briefing paper Timor Sea Maritime Boundary: Still not settled! (also Tetum).
[During 2013, Timor-Leste's government asked that CMATS be invalidated because Australia had bugged Timor-Leste's Prime Minister's meeting room during the negotiations; see below for more details.]
Timor-Leste ratified both CMATS and the International Unitisation Agreement for the Sunrise and Troubadour Fields (IUA) separately on 20 February 2007, publishing the Parliamentary Resolutions on 8 March in the Official Gazette (Portuguese).
On 7 February 2007, the Australian government tabled the treaty in its Parliament, and the Joint Standing Committee on Treaties began an inquiry. Submissions were invited before 16 March 2007. See below. Although CMATS has already entered into force, the JSCOT continued its inquiry and published a report in June 2007.
On 22 February 2007, Australian Foreign Minister Alexander Downer sent a letter to the Parliamentary Joint Standing Committee on Treaties invoking the "national interest exemption" to enable the treaty to enter into force without a Parliamentary waiting period. The next day, he announced that it had entered into force.
The CMATS package, the product of eight years of negotiation, had advantages and disadvantages for both countries. In summary, Timor-Leste increased its share of upstream revenues from 18% to 50% in return for accepting Australian sovereignty over areas east and west of the JPDA, ratifying the IUA, and agreeing not to raise the maritime boundary question for 50 years. At the time, La'o Hamutuk felt that the balance was not in Timor-Leste's favor. We continue to believe that Timor-Leste has the right to all maritime and seabed resources in the Exclusive Economic Zone shown in yellow on the map at left. (See below for additional analysis and commentary.)
Although signatories and oil companies had hoped that CMATS and the IUA would open the way for Greater Sunrise to be exploited , the basic development plan for the project was still not settled by late 2012, with Timor-Leste holding out for a pipeline to an LNG plant in Beaçu on Timor-Leste's south coast, and the Sunrise Joint Venture (led by Woodside, with Shell, ConocoPhillips and Osaka Gas) preferring a mid-sea floating LNG plant.
Article 12.2(a) of CMATS provides that "if a development plan for the Unit Area has not been approved ... within six years after the date of entry into force of this Treaty [that is, 23 February 2013] ... either Party may notify the other Party in writing that it wishes to terminate this Treaty, in which case the Treaty [except for certain clauses] shall cease to be in force three calendar months after such notice is given." As the date nears, discussion is growing on the likelihood and consequences of such termination, and La'o Hamutuk will continue to update our page on Greater Sunrise (also Tetum) with current developments.
On 27 December 2012, Timor-Leste officially ratified (Portuguese) the UN Convention on the Law of the Sea, (also Port.) and on 8 January 2013, this country formally became the 165th country to accede to UNCLOS. On the same day, Timor-Leste also became a party to the Vienna Convention on the Law of Treaties, which it had ratified in 2004.
In late January 2013, Timor-Leste officials signaled that they are likely to invoke the CMATS termination option, as reported by the headlines at left from local newspapers on 28 January. Petroleum Minister Alfredo Pires clarified his views a few days later, indicating that either Australia or Timor-Leste could withdraw from CMATS after 23 February, but as far as he knows, neither country has yet decided to do so.
On 7 February, Australian Senators asked Foreign Minister Bob Carr whether Australia intended to give notice of CMATS termination and if Australia was prepared to negotiate maritime boundaries with Timor-Leste. He responded "Timor-Leste and Australia freely entered into CMATS in 2007. Australia will honour the treaty. We expect Timor-Leste to do the same." We do not understand the Minister's comment, as invoking CMATS article 12.2 on termination would not dishonour the treaty any more than Australia did when it invoked its legal (if not moral) right to withdraw from UNCLOS and ICJ boundary dispute resolution processes in March 2002.
On 11 February, La'o Hamutuk published an article in local newspapers on the Implications for Timor-Leste of Terminating CMATS, and we did an interview with Radio Australia on 13 February. Many media reports on this issue on both sides of the Timor Sea are inaccurate or incomplete, so we gave a briefing for local journalists on 21 February and will organize a public meeting on the subject soon. Among the issues which seem hard to understand are:
We hope that Australia is ready to deal fairly with this neighbor, without imposing a gag rule to bar discussion of particular topics. And we hope that Australia is committed to with the rule of law – allowing courts or arbitration to settle the boundary when inherently unbalanced negotiations (due to the relative size, wealth, power and experience of the parties) are unable to. Law exists to protect the weak from the strong and to ensure the everyone’s basic rights are respected. Do some of the “Rule of Law” trainers and advisors AusAID pays to work in Dili need to build capacity in Canberra?
Australia's Natural Resources Minister Martin Ferguson visited Timor-Leste in February 2013; he was replaced by former Woodside executive Gary Gray in a cabinet reshuffle the following month. A few months later, Labor lost the election and a new government came to power in Australia.
Australian Minister of Resources and Energy Martin Ferguson visited Dili on 21-22 February, meeting with Timor-Leste Minister for Petroleum and Mineral Resources Alfredo Pires and others. The visit, as well as the pending possibility of terminating CMATS, was the occasion for an usually large amount of misleading and uninformed coverage in the Australian and Timorese media -- for example, Timor-Leste removes Australian company from gas project, East Timor Risks All in Oil Dispute, Woodside gas deal could redraw Australia-East Timor borders.
After their meeting, both ministers declined to give specifics in public, although Alfredo Pires said that Timor-Leste is still deciding whether to give notice of CMATS termination. He explained that the Foreign Ministries of the two nations would be the appropriate participants in such discussions, as the CMATS Treaty was signed in 2006 by Foreign Ministers Jose Ramos-Horta and Alexander Downer. Pires also said Timor-Leste was concerned about the long duration of the Treaty, and was considering various options, while Ferguson said that discussions would continue and Australia continues to want to work with Timor-Leste and the petroleum industry to advance Timor-Leste's development.
Also on 21 February, La'o Hamutuk met with local journalists to try to improve CMATS media coverage. Download the presentation in English or Tetum, or as a PDF (English or Tetum). Feel free to reprint any graphic, provided you ask permission first and credit La'o Hamutuk. We can provide higher resolution files for most of them.
The Timor-Leste Government remains committed to honor its contracts with the Sunrise Joint Venture, which will be in effect for at least 13 years more, and which they see as applying to upstream activities, leaving pipelines and downstream activities open for discussion. The Government is also committed to respect all treaties it has ratified, including the IUA and Timor Sea Treaty, and can always raise any concerns with the Australian government. Dili is discussing CMATS issues with Canberra, but has not announced formal notice of termination, as La'o Hamutuk related to an Australia radio audience. A few days later, Timor-Leste's Government issued a press release confirming the status quo.
On 28 February, The Australian newspaper published an opinion piece by Tom Clarke, an organizer with the Timor-Sea Justice Campaign in 2005, entitled Australia holding back East Timor. Clarke concluded "The only thing standing between East Timor and what it is legally entitled to is the Australian government. Australia could and should put an end to decades of hard-nosed greed and offer to negotiate in good faith with East Timor. Permanent maritime boundaries will provide more economic certainty for both countries and for the companies seeking to exploit the oil and gas resources. But, more than this, setting permanent boundaries in accordance with international law is the right thing to do. It would also bring some closure to the Timorese people's long and determined struggle to become an independent and sovereign nation complete with maritime boundaries."
The lead editorial in the March 2013 Petroleum Economist magazine, entitled "Going for Broke," discusses the failure of Timor-Leste's oil revenues to improve the lives of our people. The publication urges Prime Minister Xanana Gusmão to "be pragmatic [about the Tasi Mane project] and focus on ensuring Sunrise is developed and the revenues are used to underwrite the sustainable, long-term development of Timor-Leste’s non-oil economy. If this does not come to pass, it is hard to avoid the conclusion that Timor-Leste is a failed state-in-waiting."
On 28 March, The Global Mail published Hamish McDonald's comprehensive article about petroleum history between Timor-Leste and Australia, including Sunrise: It’s Tiny, Poor, And Very Possibly Not Going To Take It Anymore.
On 23 April, Timor-Leste's government formally notified Australia that it was exercising its right to arbitration under Annex B of the Timor Sea Treaty, arguing that CMATS is invalid because Australia conducted espionage in 2004 and did not negotiate the treaty in good faith. Although the notification has not been made public, Timor-Leste reportedly accused Australia of bugging Australian hotels and Dili government offices while Timor-Leste's negotiators were discussing their strategy. Timor-Leste named former British supreme court judge Lawrence Collins as its representative on the three-person arbitration panel. Australia will select another, and those two will select the third. Appointing the panel could take six months, and the arbitrators have another six months to issue a ruling by majority vote. The Australian government and media (also audio) reported the notification on 3 May. On 6 May, Timor-Leste Petroleum Minister Alfredo Pires (also audio) explained his reasoning, and the business press reported corporate reactions.
Australian lawyer/priest Frank Brennan, a long-time supporter of Timor-Leste, visited Dili and wrote Time to draw the line between Australia and Timor-Leste on 13 May. The controversy was covered in as diverse places as Interfax Natural Gas Daily (a Russian News Service), Clayton Utz insights, The Strategist (ASPI) and the Vancouver Sun in Canada. On 23 May, ABC radio interviewed Timor-Leste Petroleum Minister Alfredo Pires and Australian Resources Minister Gary Gray. On 26 May, Minister Alfredo Pires informed local media (Tetum article at right) that Timor-Leste is preparing to take Australia to an international court in April 2014, after the CMATS arbitration process is finished. A few days later, Prime Minister Xanana Gusmão clarified that Timor-Leste will wait for Australia's response before taking court action.
On 29 May, The Australian published Aussie spies accused of bugging Timor cabinet with additional information about Timor-Leste's complaint against Australia, with comments from Timor-Leste Petroleum Minister Alfredo Pires, his lawyer Bernard Collaery, former Australian Foreign Minister Alexander Downer and others. ABC News reported that Australian Foreign Minister Bob Carr "insists that the two countries are good friends," although he declined to comment on the specifics of the case. The following day, Radio Australia carried further comments from both sides.
On 4 June, Timor-Leste's Government issued a statement that "the overarching relationship between the two countries is and will continue to be one of deep unity, friendship and mutual respect." On the following day, Australian officials confirmed that they had not yet responded to Timor-Leste's arbitration filing. The press continued to follow the controversy, with articles in The Economist and Australian Financial Review, as well as many in the Independente and other Timorese newspapers. On 19 June, Australia responded, appointing U.S. law professor Michael Reisman as its arbitrator, (see report on Channel News Asia). The change of Prime Minister the following week will probably not significantly change Australian maritime boundary policies, and it is unlikely that the September election will either. On 5 July, Australia opposition spokesperson Julie Bishop visited Timor-Leste, exhibiting her ignorance about the 2006 CMATS treaty.
In October, the Timor-Leste and Australian members of the panel selected Argentinean-born Tullio Treves, a former judge of the International Tribunal for the Law of the Sea and Professor at the University of Milan, Italy as the third member of the arbitration panel, and he will be its President. Australia accepted the selection and proposed rules of procedure. The three distinguished jurists have six months from when they first convene to issue a decision, which is expected during the second quarter of 2014. The panel heard first arguments on 5 December in The Hague, Netherlands. Skip below for subsequent events on this process.
Prior to the Australian election, its Parliament began an inquiry (all 77 submissions available here) on Australia's relationship with Timor-Leste. Submissions from La'o Hamutuk, the Timor Sea Justice Campaign, Robert King, Damien Kingsbury and many others urged Australia to respect Timor-Leste's sovereignty regarding maritime boundaries. Differing views were offered by the Australian Attorney General and Resources Ministry, ANU's Don Rothwell, and five oil companies. At a hearing on 21 May, Australian MPs and selected witnesses exchanged ideas and misinformation on the boundary issue, but a better perspective was expressed by ANU's Joanne Wallis at the hearing the following day: "...until the maritime boundary between Timor-Leste is settled and the exploitation of resources in the Timor Sea is agreed in a mutually satisfactory way there will always be strains in the relationship. ... [T]he best way for Australia to improve its relationship with Timor-Leste would be for us to comply with international law as set out in the UN Convention on the Law of the Sea and to refer the question of the maritime boundary to an international tribunal, preferably the International Court of Justice. The committee should not underestimate how central the exploitation of resources in the Timor Sea is to the Timor-Leste government's strategic development planning, or the amount of popular resentment that is present within Timor-Leste concerning Australia's approach to these resources. Australia is a very wealthy country with one of the highest standards of living in the world. Timor-Leste remains one of the world's poorest countries where 37 per cent of the population live below the global poverty line. I ask the committee to consider whether Australia is meeting its legal and moral obligations to Timor-Leste when you are preparing your report. Only once we do that will we ever have a truly free, fair and friendly relationship with one of our nearest neighbours." At another hearing on 24 June, Canberra Friends of Dili tried raise the boundary issue, but the MPs weren't interested. With the change of Government in Australia, the inquiry has lapsed but could resume.
The Australian exploration company Oilex is the operator of Product Sharing Contract JPDA 06-103 in the Joint Petroleum Development Area, holding a 10% share in partnership with five other companies (details here). The November 2006 PSC required the companies to drill six test wells during the next seven years, but only two dry wells have been drilled to date and Oilex has requested and received several extensions. On 12 July 2013, Oilex asked the ANP to terminate this contract because they are uncertain about the impacts of the ongoing maritime boundary dispute. As explained by Energy News, Oilex was already thinking about exiting this contract for other reasons, but "Private capital needs not only the geology, it needs the certainty on the government side and we don't think its quite possible to have that confidence when the treaty underpinning the PSC is up in the air." A month later, Timor-Leste responded by press release. In October 2013, Timor-Leste ministers were cited in local media as declining Oilex's request to withdraw, but saying that if they did, many other companies would jump at the chance. In July 2015, after two years of demands and negotiations, the ANP terminated Oilex's PSC, although the parties are still arguing about financial obligations.
As Timor-Leste celebrated the 38th anniversary of its Proclamation of Independence on 28 November 2013, many were discussing Australia and the U.S. eavesdropping on other governments, including Timor-Leste and Indonesia. Minister of State Agio Pereira re-opened the public debate on maritime boundaries with interviews on Australian radio (audio, transcript) and television (video, transcript). The Australia grassroots organization Timor Sea Justice Campaign also urged Australia to establish a boundary with Timor-Leste, while former Australian Foreign Minister Alexander Downer patronizingly belittled Timor-Leste's effort to advance its national interest (audio), while TSJC's Tom Clark urged Australia to "Heed law of the sea and set a fair Timor border" in the Age. The World Socialist Web Site described some of these events in context.
On 3 December, Australian media reported that the Australian Security Intelligence Organization (ASIO) had broken into the Canberra home of Bernard Collaery, a lawyer representing Timor-Leste in the CMATS arbitration case. Australian agents also detained and searched an Australian whistleblower who planned to provide evidence for Timor-Leste to the tribunal, seizing his passport. Timor-Leste supporter Clinton Fernandes, a former Australian military officer, wrote that "Dealing fairly with East Timor is not charity, but justice". The following day saw more articles about Australia's actions (Tempo Semanal, Guardian, Sydney Morning Herald, Radio Australia), including questions from the Labor and Green parties and justifications by Prime Minister Tony Abbott and Attorney General George Brandis (Ministerial statement and press release). Timor-Leste's Prime Minister "deeply regretted" the "counterproductive and uncooperative" actions of the Australian Government, while Ambassador to Australia Abel Guterres was "deeply disappointed," as he explained on ABC Lateline.
An ABC "Fact Check" used Australian sources to conclude that what Australian intelligence did was legitimate because "one of the functions of ASIS is to engage in espionage in relation to negotiations between Australia and a foreign state to protect Australia's economic interests" and because Australia had passed a law allowing its intelligence services to undertake actions which would be crimes if done by civilians. Similar state self-justification has legitimized a wide range of atrocities, from drone assassinations to Guantanamo Prison to the Nazi Final Solution to Indonesia's occupation of Timor-Leste. The Australian newspaper has also lost perspective, editorializing in favor of stealing from Timor-Leste to advance Australia's political and economic interests. The debates in the Australian Parliament show a range of disparate views.
However, as Australian priest and lawyer Frank Brennan explained, the raids were "designed to show Timor who's boss." Although Clinton Fernandes defended the legitimacy of the raids as protecting Australian intelligence agents (audio), Brisbane Times columnist John Birmingham lamented that the former ASIS officer who blew the whistle on the 2004 Australian spying on Timor-Leste is likely to be unjustly punished. Lawyer Bernard Collaery, whose offices were raided, explained that the whistleblower had tried to work through channels without results, although Australia's Inspector-General for Intelligence said she knew nothing about this, hardly surprising given her office's limited coverage. The Australian Senate Privileges Committee later published responses from Brennan and Collaery to Brandis' accusations against them.
More than half a dozen Australian journalists and producers contacted La'o Hamutuk on 4 December. We explained that the long history of Australia's theft of Timor-Leste's oil begins with Woodside's discovery of the Sunrise field in 1974, which encouraged Australia to support Indonesia's invasion the following year. Australia's greed for the undersea wealth of the illegally occupied territory led Canberra and Jakarta to sign the 1989 Timor Gap Treaty over the corpses of tens of thousands of Timorese people. Australia's refusal since 2002 to recognize Timor-Leste's sovereignty by establishing legally valid maritime boundaries demonstrates their desire to continue to profit from maritime territory gained as part of Indonesia's illegal occupation. In light of this history and the continuing theft of 40% of Timor-Leste's oil and gas, the latest spying incidents are almost background noise, as La'o Hamutuk's Charles Scheiner explained on ABC Radio National (audio).
The 5 December papers included two articles by former Timor-Leste advisor Paul Cleary, on the history and dreams for Timor-Leste gas. As the initial arbitration hearings began in the Hague, it emerged that Timor-Leste has four whistleblowing witnesses and had told Australia their names two weeks ago. Many papers described the upcoming battle (World Today, Lateline, Herald Sun). After the day of meetings, ABC radio interviewed Timor-Leste Ambassador Joaquim Fonseca.
On the afternoon of Thursday, 5 December, a group of Timorese activists demonstrated peacefully across the street from the Australian Embassy in Dili. Their statement (Tetum original) said that the Movement Against The Occupation of the Timor Sea will continue to protest until Australia changes its policy. Click on any photo to see it larger.
The demonstration was totally peaceful, assisted by four PNTL officers who kept the protesters and the traffic separate. After about an hour, the PNTL "Task Force" arrived and immediately fired tear gas to disperse the protesters, without talking with anyone. The above banner headline and article from Diario Nacional describe the excessive force used by police without provocation. Unfortunately, a Timorese AFP stringer falsely reported that stones were thrown at the embassy, a slander eagerly propagated by media in Australia and around the world. Top officials of the Australian Embassy and PNTL confirmed to La'o Hamutuk and later to the media that the demonstration was totally nonviolent. On Friday morning we asked AFP to issue a retraction, and they revised the article 11 hours later, but the unrevised article was still on the internet more than a thousand times. Secretary of State for Security Francisco Guterres told ABC that "the police did not need to work with any force, especially tear gas," (audio), although the journalist did not believe his claim that no tear gas was used, citing the photo in Diario above. An Australian SBS radio program (audio) mentioned the false report of rock-throwing but aired and explained the demonstrators' goals. La'o Hamutuk wrote a blog entry on the Presumption of Violence which has been widely reposted.
Except for the false stone-throwing report, some Australian media are deepening their understanding. An editorial in the Melbourne Age concluded "If Australia has exploited such imbalances in power for commercial gain, and done so through espionage, then we should be deeply ashamed." Letters and columns by Donald Anton in the Age (longer version) and Richard Ackland (in the Sydney Morning Herald) include historical background and raise doubts Australia's behavior, and Michael Leach pointed out that Australia's democratic self-image is damaged by its actions in the Timor Sea. From the activist side, Shirley Shackleton warned that Bernard Collaery's "spark of justice and dignity" won't be easily intimidated. On the other hand Australian academic Sarah Heathcote "explained" that spying is normal so the tribunal is unlikely to invalidate CMATS.
On Friday, about 100 people joined the Movement Against the Occupation of the Timor Sea in a second nonviolent demonstration across from the Embassy from 2:30 to 5:30, with full cooperation of the police. Two representatives of the group were invited into the embassy to give their statement to Ambassador Miles Armitage, who told them he respects their right to demonstrate and will communicate their concerns to Canberra. Although this demonstration was covered by Timor-Leste television and Tempo Semanal, it was largely ignored by the international media, perhaps because all parties behaved peacefully and responsibly. Crikey and Lusa/Sapo videos were notable exceptions.
A third demonstration was held on Saturday, the 38th anniversary of Indonesian's invasion of Timor-Leste, which was abetted by Australia. When he returned to Timor-Leste, local radio interviewed Xanana Gusmão (Tetum). The following Monday, the Sydney Morning Herald reported that Timor-Leste knows who the 2004 spies were and is disturbed that they had pretended to be aid workers.
Monday afternoon saw the largest demonstration to date with around 200 people, including many children.
On Monday, 10 December, Timor-Leste asked ASIO to return all materials they seized from Bernard Collaery's office. Former president Jose Ramos-Horta added his voice to those condemning Australia's actions, as did Petroleum Minister Alfredo Pires (English audio or written Tetum). The Australian Government updated its travel advice, warning visitors to Timor-Leste to "exercise a high degree of caution in Timor-Leste because of the uncertain security situation. The situation could deteriorate without warning. ... You should avoid demonstrations, street rallies and other large public gatherings as they may turn violent." As readers of website probably know, there has not been a violent demonstration in Timor-Leste for many years.
The protest that day, International Human Rights Day, was the largest so far, issuing this statement (also Tetum). As daily demonstrations will not continue, at least for now, we are sharing more photos of this one. Click on each one to see it larger. The sign in the second photo says "we don't like Australia" and the fourth one says "My blood spilled from the mountain to the SEA."
The Melbourne Age called Australian spies pretending to be aid workers "beggarly," and that shameful behavior is becoming known globally. For example, British/Canadian columnist Gwynne Dyer's article "Australia’s surveillance of East Timor too shameful to share" has been published worldwide, while Mong Palatino's piece in the Diplomat gave basic background. Australian Josephites published a flyer, Turmoil on the Timor Sea, explaining how Australians can communicate with their elected representatives to support Timor-Leste's rights.
About 40 Timorese students and activists spent the morning of 13 December discussing legal, historical and strategic details of the maritime boundary dispute. You can download the Tetum PowerPoint La'o Hamutuk showed them (also PDF). They held another peaceful demonstration across from the embassy on 20 December.
On 17 December, Timor-Leste brought Australia to the International Court of Justice (TL's application and requested measures, ICJ press release, Court's message to Australia, logistics; also AAP), demanding the return of documents taken when ASIO raided attorney Bernard Collaery's office three weeks earlier, and SMH's Tom Allard explained the legal issues. Predictably, former Foreign Minister Downer was defensive. The court heard the case on 20-22 January 2014, as foreshadowed in an ABC radio interview with TL Ambassador Joaquim Fonseca and La'o Hamutuk's Juvinal Dias (2MB audio). See below for proceedings.
On 28 December, Kirsty Sword-Gusmão, the Australian-born wife of Timor-Leste's Prime Minister, wrote of her "disgust" at Australia's "act of hostility towards the people of my adopted homeland." On the same day, the Sydney Morning Herald revealed additional details of the raid on Attorney Collaery's office a few weeks earlier, including an analysis of the history and motivations of both nations.
In La'o Hamutuk's submission to the Australian Parliament last March, we wrote that "we cannot understand why the democratic nation of Australia, which respects human rights and rule of law for its own citizens, is unwilling to apply those principles to its northern neighbour. Is Australia so afraid of a fair boundary settlement that you would rather be a bully than a good international citizen? Why do you continue to exploit advantages you obtained during the shameful and bloody Indonesian occupation of our country? ... Australia should take the path of legality and mutual respect by engaging in good faith negotiations and dispute resolution processes to decide our maritime boundary." Although the latest scandal casts doubt on our initial premise, the renewed attention could help answer the questions we asked.
Australians were reminded of their government's long-standing duplicity on Timor-Sea oil rights when a 25-year old government memo, recently (mostly) declassified, blacked out their reasons not to define the maritime boundary (see page image at right or complete document). The SMH reported about their ongoing lack of openness, and Paul Cleary described the 2004 bugging operation in The Australian. On 10 January, the SMH explored possible motivations for Australia's recent actions.
As the ICJ hearings neared (see four paragraphs earlier for case filing), commentators Michael Sainsbury, Matthew Happold, the Financial Times, Kate Mitchell/Dapo Akande and David Robie provided background, and the Timor-Leste Government issued a statement. Tom Clarke of the Australian Timor Sea Justice Campaign was interviewed on ABC television.
Before the hearing, the ICJ received a written response from Australia, as well as packets of documents from both Timor-Leste and Australia (20MB). The documents include many interesting letters and emails between the parties, as well as texts of laws which Australia believes are relevant.
Photo: (left) Attorney Bernard Collaery and Foreign Minister Jose Luis Guterres at the first open ICJ hearing on 20 January in the Hague
(right) Timor-Leste's attorney Sir Elihu Lauterpacht, Minister Jose Luis Guterres and Ambassador Joaquim Fonseca.
Timor-Leste's lawyers presented their argument (2-hour streaming video record, transcript) that Australia engaged in "unprecedented, improper and inexplicable" conduct in the raid on Bernard Collaery's office, asking that the materials taken be returned or sealed (although Australia's Attorney General has promised not to read them (declaration)). Many media reported the hearing, including ABC, the Guardian, the Global Mail and the Sydney Morning Herald. As per the court's schedule, Australia responded on 21 January (video, transcript, SMH, Guardian, Australian), Timor-Leste summarized on the morning of 22 January (video, transcript, ABC) and Australia the same afternoon (video, transcript, Australian, SMH). The court described their requests and will set the date for their ruling in the future. The Guardian described the main issues in the case, The Australian cheered for Australia's lawyers, and ex-Foreign Minister Alexander Downer (response by Andy Alcock) and Green Party Senator Lee Rhiannon published disparate views of its historical context. (Downer was named in late February as Australia's new High Commissioner (ambassador) to the UK.)
On 28 January, the ICJ issued an Order (followed by a press release) denying Australia's request to suspend the proceedings until the arbitration case is decided. The Order accepts Timor-Leste's request to keep the case going and sets a schedule for Timor-Leste to file written arguments by 28 April and Australia to respond by 28 July, with further proceedings to follow. The court will decide on Timor-Leste's request for provisional measures on 3 March, as explained by the Timor Sea Justice Campaign in Australia.
As Australian papers worried about graffiti on the wall outside their Dili embassy, Green Party Senator Scott Ludlum pressed the Attorney General and the head of ASIO for information about the raid on Collaery's office (video on YouTube part 1, part 2).
On 3 March, the International Court of Justice issued its preliminary Order (summary, press release) for provisional measures, accepting most of Timor-Leste's claims but declining to instruct Australia to return the seized materials. Twelve of the 16 judges ordered that:
Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded;
Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court;
Judge Cancado-Trindade (Brazil) agreed with the Order but wrote a separate opinion recommending that Australia be ordered to turn the seized materials over to the ICJ for safekeeping. Judges Keith (NZ), Greenwood (UK), Donoghue (USA) and Callinan (Australia) wrote dissenting opinions, suggesting that Australia should be given more trust or flexibility regarding the seized materials.
Fifteen of the judges (all except for Australian-appointed judge ad hoc Ian Callinan) ordered:
Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor-Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.
The decision is provisional and only relates to Timor-Leste's request for "urgent measures," and "in no way prejudges" the final outcome which will take at least six months more. As a compromise, it was diplomatically appreciated by both the Australian government, the Timor-Leste government and the Timor Sea Justice Campaign. Australian media began jingoistically (the AAP story on 7 News was initially headlined "Australia wins UN court fight" but later changed to "Aust to keep docs but not spy on Timor: ICJ"), but later coverage was more accurate. ABC Radio National interviewed Clinton Fernandes (audio) who put the ruling in context. The SMH called it a "major setback" for A-G Brandis, while ABC and the Guardian were also reasonably objective, as was most reporting the following day, including Stop Spying On Timor, Court Tells Australia (New Matilda by Tom Clarke from TSJC, also longer version), ICJ orders Australia to stop spying on East Timor (SBS; also audio interview with Ambassador Joaquim Fonseca and Tom Clarke), Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice (Matthew Happold on the EJIL blog), Australia ordered by The Hague to stop spying on Timor-Leste (UK Telegraph) (longer version), Xanana Gusmão: Ita Manan Ona Australia (Suara Timor Lorosa'e) and UN Rules against Australia in Favour of East Timor (International Business Times), as well as in Vietnam and around the world.
After a week of reflection, two women Washington lawyers wrote analyses: Can the ICJ Avoid Saying Something on the Merits About Spying in Timor-Leste vs. Australia? (Ashley Deeks) and several articles on Susan Simpson's blog, including How Australia Overplayed Its Hand in the Timor Sea and The Historical Context of Australia's Political and Legal Strategy in the Timor Sea, as well as a Timeline of Events leading up to TL's ICJ Claim. On a more absurdist note, former Australian Senator Bill O'Chee accused Timor-Leste of espionage against Australia, as ably rebutted by Binoy Kampmark. On the legal side, the law firms Steptoe & Johnson and Herbert Smith Freehills analyzed the implications of the ICJ ruling for other arbitration cases, and Clinton Fernandes suggested that good-faith negotiations are key to unraveling the dispute between the two countries. (Skip down for ongoing information on the ICJ proceedings.)
The CMATS arbitration case is proceeding in the Hague (see above for background). On 18 February 2014, Timor-Leste presented its first substantive arguments and evidence. Australia will respond on 19 May, and a second round of filings from Timor-Leste (18 July) and Australia (18 August) will provide the basis for hearings from 27 September to 2 October before the panel rules. On 23 February, ABC Radio National's Background Briefing aired a 40-minute documentary (transcript, audio, web page) examining the espionage during 2004-2005. In the program, ANU legal expert Donald Anton (download his ASIL paper) explained that "if the [eavesdropping] allegations prove true, Australia is in an unenviable and dubious position of being the first state of having a treaty it negotiated declared invalid on account of its fraud."
On 17 March, ABC television's Four Corners aired a documentary "Drawing the Line" on these issues (transcript), as described in this preview about Australian government closeness to oil companies. ABC promoted the program with a teaser on Canberra's threats against Timor-Leste, based on a leaked internal Timor-Leste memo later circulated by the Timor-Sea Justice Campaign. Some Timorese officials mistakenly berated Australia for sending this message through the media rather than directly, although journalists learned the information after Timor-Leste's government had been informed.
Timor-Leste has paid close to $20 million in legal fees for these cases so far (including $5.8 million in March 2014), and expenses will continue. The $11.8 million spent in 2013 exceeded the $10 million budgeted for legal services that year, and expenses in 2014 will almost certainly be more than the $10 million appropriated. The Procurement Portal contains a little information on $2.3 million in contracts awarded to Bernard Collaery since 2010 (including $289,000 last November) and the $1.5 million contract signed the same month with DLA Piper Australia, but other contracts are not on the Portal. In addition to legal fees, Timor-Leste has spent significant amounts on travel, consultants, and government officials' time, but less information is available.
Susan Simpson has created an invaluable Google Earth bookmark and written an article (online original) showing how various agreements have drawn lines in the Timor Sea over the last 42 years, without setting a permanent maritime boundary.
On 19 March, Presidential researcher Guteriano Neves published a brief history of the Timor Sea Controversy (Tetum) in an effort to improved media and public awareness of the basics of the issue. The Independente newspaper put his article on the front page, while other papers were filled with Timorese politicians fulminating about last week's ABC report about an Australian diplomatic warning.
The same day, Prime Minister Xanana Gusmão addressed the Jakarta International Defense Dialogue. He told the assembled dignitaries, including those from Australia: "However, in order for this cooperation [on maritime security] to be honest and serious, it is vital that we determine the maritime borders between countries, under international law, in a clear manner without subterfuges of any kind.
"It is truly offensive to see how some countries, because they are large, wealthy or heavily armed, are always the ones that are more unfair to their neighbours, particularly when those neighbours are small and poor.
"International law is always invoked, in the pronouncements made in relation to other countries. But international law is simply relegated or forgotten, when it is to ensure major economic benefits at the expense of the principle of fair policy and of the universal values of equal rights and obligations between peoples and nations."
On 20 March, the Timor Sea Justice Campaign observed the 12th anniversary of Australia's withdrawal from maritime boundary legal processes, as reported by SBS radio. Ten days later, the Campaign published the leaked Timor-Leste memo about Australia's threats.
The Australian online human rights magazine Right Now recently published several relevant articles, including Timor's Oil (Tom Clark), Bugged: Espionage in East Timor (Sayomi Ariyawansa), Walking Together: Australia’s Chequered History in Timor-Leste (Leona Hameed & Charles Scheiner), Having it Both Ways: Australia's Conflicted Position in the Timor Sea (Sarita Ryan), and Cutting the Gordian Knot - Solving the East Timor v Australia Dispute (Clinton Fernandes).
On 1 April, the Sydney Morning Herald cited Timor-Leste's lawyers as saying that a January letter from Australia to Timor-Leste supporting ConocoPhillips in the Bayu-Undan tax dispute linked the tax cases to the CMATS arbitration currently in process, inadvertently strengthening Timor-Leste's request for arbitration under the Timor Sea Treaty.
Later in April, the CMATS arbitration panel ordered Australia to allow the ex-ASIS whistleblower to provide evidence to their proceeding. Australia had cancelled the former agent's passport four months earlier in an effort to prevent him from travelling to testify to the panel, but technology could allow other options.
While processes continued behind closed doors in the Hague, Australia's Parliament was active. The Senate Committee of Privileges published formal responses by two Australian supporters of Timor-Leste, Frank Brennan and Bernard Collaery, to Attorney General George Brandis' December 2013 accusations against them. On 28 May, Australian Senator Kim Carr asked with Attorney-General Brandis about whether Australia had apologized to Timor-Leste for the ASIO raids, while Senator Nick Xenophon questioned Inspector-General of Intelligence and Security Vivian Thom and ASIO representatives about the raids.
In early May, Timor-Leste's Petroleum Ministry invited experts from the U.K. Hydrographic Office to Dili, where they gave workshops on principles and precedents for resolving maritime border disputes. La'o Hamutuk joined with others from media, government, security forces and civil society, as we all tried our hands at delineating the issues underlying undersea boundaries.
On 5 June, Timor-Leste's Government encouraged an apparent change in Australia's position, citing speeches by Defence Minister Johnston and Prime Minister Abbott that boundary disputes should be settled in accordance with international law. TL Government spokesman elaborated its position in a long article The Gap is Getting Bigger, it's Time To Draw the Line in Tempo Semanal on 25 August, and a press release Words and Actions on 2 September.
In mid-July, the Northern Territory Bar Association held its biennial conference in Dili, including Australian attorneys Christopher Ward and Bernard Collaery as speakers. Conference participants adopted resolutions calling on the Australian government To give up its unlawful and unjust claim to a boundary north of the median line; To support the immediate commencement of negotiations to settle the lateral boundaries of the Timor Gap; and To require Australia's Parliament to conduct a full and proper inquiry into allegations that the Australian Secret Intelligence Service unlawfully entered and eavesdropped on Timor-Leste during the CMATS Treaty negotiations. A few weeks later, the Victoria Local Government Association Working Together with Timor-Leste conference in Melbourne adopted similar resolutions. On 29 August, the Timor Sea Justice Campaign used the 15th anniversary of Timor-Leste's independence referendum to urge Australia to resolve their common maritime boundary, which TSJC coordinator Tom Clarke explained more deeply in New Matilda.
The International Court of Justice Annual Report, covering August 2013 through July 2014, includes several pages about the Timor-Leste v. Australia case.
On 1 September, the Sydney Morning Herald reported that the Australia's government has asked their police to investigate bringing criminal charges against Bernard Collaery and the unnamed whistleblower, although the Guardian reported that Attorney General Brandis denied making such a request. Australian Senator Nick Xenophon questioned Brandis about this in the Senate, and Clinton Fernandes described the controversy on Crikey.com. Mark Pearson explained the implications for freedom of the press. This controversy has motivated the Australia government to propose new laws punishing whistleblowers for talking with the media, as discussed by journalists Richard Ackland and Brendan Nicholson.
In the Hague, oral arguments on the International Court of Justice case were expected to commence on 17 September, but on 3 September the Court granted the request that Timor-Leste and Australia made on 1 September to adjourn the proceedings indefinitely "in order to enable [the two countries] to seek an amicable settlement." This development was reported by Radio Australia, the Age and SBS, among others. A few days later, former President Jose Ramos-Horta excused Australia's spying by saying that all nations do it, but Russell Marks of Politicoz wrote that Australia could still be the first country to have a treaty invalidated on grounds of fraud.
Lawyer/priest Frank Brennan gave background on the boundary controversy in Eureka Street, supporting efforts to resolve the issue by private negotiation rather than "airing dirty laundry in exalted international fora." In response, activists Rob Wesley-Smith and Andy Alcott warned of Australia's shameful record on this issue.
On 19 October, Fairfax journalist Tom Allard wrote of an interview with Xanana Gusmão, in which the PM explained that, despite concerns about Timor-Leste, he had accepted Australia's proposal to negotiate the boundaries, reserving the right to go back to court if negotiations fail. Talks began quietly, although Timor-Leste's Parliament passed a resolution (official Portuguese) on 24 October supporting the Government to create a Special Council to oversee definitive maritime boundary negotiations with Australia. On 27 October, Allard reported that Timor-Leste was moving ahead to begin negotiations. The Australian Timor Sea Justice Campaign welcomed the upcoming negotiations, urging Australians tell their government to treat Timor-Leste fairly, and their call was covered by SBS. PGI Intelligence was encouraged by renewed negotiations, writing that Timor-Leste "has a strong case" to establish a boundary which would give it a larger share of Greater Sunrise.
Australian clergy and others encouraged their government to treat Timor-Leste fairly, while Prime Minister Gusmão defended his country's rights.
The boundary controversy continued to receive attention at industry meetings. On 14 January, Timor-Leste enacted (also Tetum) Decree-Law No.2/2015 (official Portuguese) to create a Council for Definitive Delimitation of Maritime Boundaries, and Woodside hoped that the process would be resolved soon.
As Timor-Leste prepared for its new Prime Minister in mid-February, the Timor Sea Justice Campaign urged Australian PM Tony Abbott to take a fresh approach to the boundary issue. The petroleum trade press wrote that Greater Sunrise is Crucial for Timor Sea Development, unaware that it was about to be sidetracked.
During a press conference about the release of Woodside's 2014 Annual Report on 18 February, President Peter Coleman announced that Woodside will "shelve" work on Greater Sunrise until sovereignty and LNG plant location issues are resolved. Woodside made $2.4 billion in profits in 2014, but says that falling world oil prices have reduced its income and required cuts. They are laying off 320 workers (although Coleman received a $2 million pay increase, bringing his 2014 salary to nearly US$7 million). See reports by AAP/The Australian, Reuters, Upstream and The West Australian. Many in Timor-Leste believe that the Sunrise announcement is a bargaining tactic, intended to put pressure on the Timor-Leste government to give in to the positions of the company and Australia on a floating LNG plant and continuing the CMATS agreement without establishing a maritime boundary. According to the Woodside's new annual report (which is dated 18 February but apparently was written before this decision was taken), "we continue to engage with the Timor-Leste and Australian governments to facilitate the timely progression of the Sunrise development, including discussions on multiple development concepts including both on and offshore options. ... Woodside remains committed to developing Greater Sunrise once alignment on a commercial development concept is achieved." CEO Coleman was more diplomatic in his address to Woodside's Annual Meeting on 16 April: "On Sunrise, I think we can expect to see some real progress once clear title and fiscal terms are established."
Dr. Rui Maria Araùjo, Timor-Leste's new Prime Minister, stressed that he wanted to discuss issues with Australia "in an honest and friendly way," and does not want Australian charity. His spokesperson confirmed that Araùjo will continue the previous government's advocacy for maritime boundaries and a Sunrise pipeline to Timor-Leste's south coast, expressing hope that Sunrise will be developed eventually. As the industry press exaggerated the significance of Woodside's recent announcement, Timor-Leste's Minister of Petroleum said his country was ready to buy Woodside's share (also Tetum) in the project.
On 1 March, Australian media reported that Australian Federal Police are still investigating the whistleblower, known as Witness K, who informed Timor-Leste about Australia's spying on government offices in 2004. Since late 2013, they have been trying to determine whether he violated Australian intelligence services law.
Six months after Australia and Timor-Leste asked the International Court of Justice to suspend their hearings in early September 2014, Timor-Leste media quizzed local authorities about progress in the secret talks with Australia, but little information was forthcoming. Independente editorialized that Re-negotiations about the Maritime Boundary Line Must Proceed with Honesty on both sides.
On 10 March, Timor-Leste's National Procurement Commission announced its Intent to Award a $3.8 million contract for "Pre-FEED" preliminary engineering design for the LNG plant in Beaçu. La'o Hamutuk wrote a letter of protest to the Commission on 17 March, urging that the contract not be awarded because the project will not be built for many year, if ever.
In a Wall Street Journal op-ed column on 11 March, ex-Prime Minister Xanana Gusmão wrote: "[Since 2007], much of our official energy was diverted into complex negotiations with Australia about access to valuable oil and gas resources on the Timorese side of the median line in the Timor Sea. But the median line in the Timor Sea that separates East Timor and Australia has yet to be accepted by Australia as the boundary. This leaves us with no recognized boundary and no understanding as to where East Timor ends and Australia begins, with security and commercial implications for both countries.
"These negotiations continue, and though I am no longer the prime minister, I will continue pursuing full sovereignty for our nation as we work for a permanent maritime boundary properly determined by international law. Only with this determination will East Timor’s full sovereignty be secured, and with it the sovereign ability to pursue the economic direction best for our people."
Petroleum Minister Alfredo Pires and other Timorese officials spoke at a Special Interest Lunch at the Australasian Oil & Gas Exhibition and Conference in Perth on 12 March, after conference organizers promised that they would tell the "real" Sunrise story. Australian newspapers reported that Pires discussed the terrorism dangers of Floating LNG (SMH) and that he was "not happy" with Woodside's shelving the Sunrise project (West Australian), and that therefore Timor-Leste is willing to buy out "any disenchanted partners" in the Sunrise project (The Australian). The trade newspaper Upstream described Pires' disappointment and his estimate that a Sunrise-Beaçu pipeline would cost about $800 million. The next day, Woodside responded that they still prefer floating LNG for Sunrise. Timor-Leste's government celebrated (also Tetum) the attention, and Minister Pires restated his view after returning to Dili. In April, Petroleum Economist's analysis Time ticking for Timor-Leste as Sunrise shelved summarized the dilemma.
Former Prime Minister Xanana Gusmão visited Australia in mid-March, revealing that he had known about Australia's spying for many years. He told ABC radio that Timor-Leste will not give up in the boundary and oil dispute with Australia.
On 8 April, Timor-Leste's Council of Ministers approved what became Decree-Law 8/2015 of 22 April (Portuguese) to create the "Council for Definite Delimitation of Maritime Boundaries." The 2015 Budget Rectification approved the same week allocates $500,000 for the Maritime Boundary Council, three times as much as the original 2015 budget. In early June, the international law firm DLA Piper was recruiting staff for the MBC, which held its first meeting on 29 June.
In Sydney, the Timor Sea Forum published a two-page briefing paper, Time for Fair Borders in the Timor Sea.
On 3 May, Timor-Leste's government "appreciated" Australia's decision (also Tetum) to return all documents and data seized from Bernard Collaery's Canberra office in December 2013. Australia had written to the ICJ stating its wish to return the materials, and on 22 April the court agreed. However, Timor-Leste lamented that "there had been little progress" in scheduling boundary negotiations, although the six-month adjournment of the ICJ case expired on 3 March. However, Dili "remains optimistic that the leaders of our great neighbor will demonstrate courage and commit to a clear course of negotiations to settle the maritime boundaries between our two countries once and for all." Australia's partial change of heart was reported by the Sydney Morning Herald, ABC, The Australian and the Guardian, although the Timor Sea Justice Campaign in Australia continued to urge Australia to enter boundary negotiations in good faith. On 6 May, the ICJ issued a press release with background, text and separate opinions on their 22 April order, reported by 9 News.
On 12 May, Timor-Leste's government announced that Australia had returned the materials taken from Collaery. At around the same time, the Australian Department of Foreign Affairs released a one-page summary of Australia's maritime arrangements with Timor-Leste, ignoring the current controversies. On the other hand, Crikey.com wrote that Australian Attorney-General George Brandis makes a mockery of IGIS' vaunted 'independence' and wondered why outgoing Inspector-General of Intelligence and Security Vivienne Thom "gets to leave without ever explaining why she blatantly maintains something contradicted by the public record on the most serious spy scandal in decades."
On 20 May, the 13th anniversary of Timor-Leste restoring its national independence, the Australian-based Timor Sea Justice Campaign wrote on ABC that Our self-interest is still holding East Timor back. On 28 May, the Australian Congress of Trade Unions called on their Government to "acknowledge its unlawful and unjust claim ... and adhere to the principles of the UN Convention on the Law of the Sea impartially and fairly, and to commence immediate negotiations to settle the eastern and western boundaries of the Timor Gap between Australia, Timor-Leste and Indonesia."
On 3 June, Timor-Leste said (also Tetum) that it would ask the ICJ to terminate the Timor-Leste v. Australia case about the raid on Bernard Collaery's office. At the same time, Dili is reopening the case it filed in April 2013 with the Permanent Court of Arbitration, asking that the 2006 CMATS treaty be annulled because Australia spied on Timorese officials while it was being negotiated. These developments were reported by the Sydney Morning Herald and ABC. Two days later, the Guardian, Wall Street Journal, and Agence France-Presse reported that "disappointed" Australia was still committed to CMATS and "would strongly defend the arbitration," preferring "consultation" to "negotiations." Unfortunately, the WSJ article incorrectly wrote that CMATS had "created [a] sea border" (in fact, it explicitly prevented establishing a boundary) and that contested territory outside the JPDA is under "exclusive Australian jurisdiction" (the dispute over these areas is the heart of the controversy). The AFP wrongly implied that there is an existing boundary to be renegotiated and confused the ICJ with the PCA (both tribunals are in The Hague, Netherlands, but they are distinct institutions). The Timor Sea Justice Campaign expected that dropping the ICJ case would help "focus on the original case and the need for permanent maritime boundaries."
On 11 June, attorney Bernard Collaery delivered an address at the Australian National University on 'National security, legal professional privilege, and the Bar Rules,' detailing the events and legal issues connected with the Australian intelligence raid on his office. Crikey.com summarized Collaery's 47-page lecture.
On the same day, the International Court of Justice issued an order accepting Timor-Leste's 2 June request (and Australia's 9 June agreement) to "discontinue" the Timor-Leste v. Australia case, and removed the case from the Court's List of activities, as announced in an ICJ press release the following day. The news was reported by the Saturday Paper, the Guardian (AAP) and Baker & McKenzie. The CMATS case in the Permanent Court of Arbitration continues, as Timor-Leste Foreign Minister Hernani Coelho explained in Diario Nasional on 17 June.
Australian authorities continue to prepare for criminal prosecution against "Witness K," the former ASIS agent who exposed the 2004 Australian bugging of Timor-Leste's offices. As reported by Tom Allard in Fairfax newspapers on 22 June, their ongoing seizure of his passport could prevent the whistleblower from testifying before the arbitration panel in The Hague. Attorney Collaery, who represents Witness K, called the case "a showdown between good and evil" and "an unprecedented attack on the Rule of Law", but is confident that "justice will triumph so long as our courts are able to operate." However, as reported by the Guardian, proposed legislation which could strip whistleblowers of their Australian citizenship.
On 29 June, Timor-Leste's Consultative Commission for the Final Delimitation of Maritime Boundaries held its first meeting (also Tetum) (see above for background, photo at left). Prime Minister Rui Araùjo met with other ministers, former Presidents and former Prime Ministers to discuss the role of the new entity, although Mari Alkatiri, Alfredo Pires and Hernani Coelho were unable to attend. Elizabeth Exposto, who has worked closely with Xanana Gusmão and Agio Pereira since before the restoration of independence in 2002, is the Chief Executive Officer of the new Maritime Boundary Office.
Former Australian MP and advisor to Timor-Leste's government Janelle Saffin spoke at a 22 July seminar on Melbourne Law School on Time to Draw the Line, in the Timor Sea that is. Former Victoria Premier Steve Bracks challenged his Labor Party to "right another historic wrong" by "allowing Timor-Leste and Australia to finalise our maritime boundary according to the rule of law, and with resort if necessary to an international umpire.
On 26 July, the Labor Party annual conference passed a resolution that, if elected, Labor would enter maritime boundary negotiations with Timor-Leste, an opening that reported in the press and was welcomed by the government of Timor-Leste. However, Independent Senator Nick Xenophon expressed concern that Labor's new promise of negotiations is less pro-Timor-Leste than its previous support for a median line boundary. Although resolution sponsor Janelle Saffin explained that support for a solution under "a rules-based international system" implied a median line, the record, including Australia's current position, is that "a median line is [not] the only applicable principle," as described in the Facebook discussion at right. On 2 August, SMH published Senator Xenophon's column "Failure to deal fairly with East Timor opening the door to China." The following week, Stephen Grenville responded to the Senator with a diatribe replete with plagiarism, factual errors and prejudice, which was translated and circulated by the Australian Department of Foreign Affairs and Trade.
Timor-Leste took its boundary concerns to Indonesia in late August. Key officials participated in seminars on maritime boundaries in Bali (also Tetum), defending its rights with this statement. During the same week, Prime Minister Rui Araùjo, Xanana Gusmão and others went to Jakarta (also Tetum), where they discussed land and sea borders with Indonesian Prime Minister Joko Widodo and were interviewed by local media. According to Antara and the Jakarta Globe, the two leaders agreed to settle unresolved land boundary issues this year and maritime boundaries before Araùjo's term ends in 2017. Coincidentally, the Sydney Morning Herald reported the previous week that the Australia-Indonesia maritime boundary is a long-standing cause of friction between Timor-Leste's larger neighbors. After the delegation returned, Timor-Leste's government called the visit "successful." On 18 September, Timor-Leste and Indonesia held consultations in Dili to begin delimiting their maritime boundary, with a second round of meetings (also Tetum) on 29-30 October.
Timor-Leste's Maritime Boundaries Commission met on 9 September, continuing its arbitration challenges to Australia, as described by the Saturday Paper in early September. In Australia, Timor-Leste's supporters urged their government to respect their neighbor's rights, while Timorese civil society remained steadfast. With the replacement of Australian Prime Minister Tony Abbott by Malcolm Turnbull, it is unclear whether Australia will take a more reasonable position. On 20 September, INTERFET veteran Chip Henriss wrote that "I thought Australia wanted to help East Timor, not take its oil, and a few days later Jose Ramos-Horta expressed his optimism about Australia's willingness to negotiate in Tempo Semanal.
During the Singapore arbitration hearings on Timor-Leste's effort to collect unpaid taxes from oil companies, ConocoPhillips presented a letter from the Australian government asserting that Australia has "exclusive jurisdiction" to tax the pipeline which takes Bayu-Undan gas to Darwin. Although ConocoPhillips withdrew the letter after Timor-Leste objected that they had not seen it, Timor-Leste decided to initiate a new arbitration case under the Timor Sea Treaty regarding pipeline jurisdiction. Australia responded with a press release, and the controversy was reported by the Wall Street Journal (with errors), Business Spectator and Australian Associated Press, as well as in trade media Platts and IHS.
In late September, Prime Minister Rui Araùjo, accompanied by Jose Ramos-Horta, Xanana Gusmão and others, went to New York for the UN General Assembly. The Prime Minister raised the issue of Maritime Boundaries at Columbia University and in other fora, and his interview with Associated Press was carried by dozens of media outlets all over the world. On the morning of 1 October, Dr. Araùjo, Ramos-Horta and Gusmão and TL Maritime Boundary Office head Elizabeth Exposto spoke at an International Peace Institute seminar "Timor-Leste’s Story: Securing its Sovereignty over Land and Sea" (streaming video or 17 MB audio podcast). That afternoon, the Prime Minister told the General Assembly that "the national consensus in Timor-Leste is that we must work toward the full assertion of our national sovereignty under international law and standards. And this full assertion of our sovereignty includes the demarcation of our maritime borders with our two great neighboring nations: Indonesia and Australia. As a matter of principle, Timor-Leste resorts to negotiations pursuant to international law and standards and, when dialog fails to resolve disagreements, our country chooses to use international conflict-resolution mechanisms."
On 7 October, the Prime Minister laid out Timor-Leste's position in a Washington Times op-ed. Later that month, Australian Foreign Minister Julie Bishop and Timor-Leste Investment Minister Xanana Gusmão argued their positions in Saturday Paper.
On 16 October, Woodside announced that it was selling its share in the Laminaria-Corallina oil fields, after a decade and a half of production from fields that belong to Timor-Leste under median line legal principles. La'o Hamutuk estimates that Australia took in more than two billion dollars that should have gone to Timor-Leste since the field began production in late 1999.
In the Australian Parliament on 20 October, Attorney General Brandis took pains to evade questions about the settlement of the ICJ case, ASIO's reasons for raiding Bernard Collaery's office, and how much Australia had paid in legal costs related to the case. On the other side of the sea, Timor-Leste's government appreciated ICJ's work in an 11 November press release.
Later in November, Timor-Leste stepped up its campaign to reach out to the Australian people and sympathetic politicians. The maritime boundary issue was discussed repeatedly during the Timor-Leste Update at Australian National University (LH presentation), and La'o Hamutuk brought it to the annual Independence Day dinner of the Australia-East Timor Association in Melbourne. Mark Aarons put the boundary debate in historical perspective in a feature article in The Monthly. On 27 November, Hamish McDonald critiqued Timor-Leste's strategy on boundaries and the Tasi Mane project in Saturday Paper, expanding on a similar article he wrote for Nikkei Asian Review the previous week.
The Lateline news program on ABC television covered the spying scandal in three in-depth reports on 25-27 November, including interviews with Timorese leaders and Bernard Collaery, former advisor Peter Galbraith, attorney Nicholas Cowdrey and Senator Nick Xenophon (video podcasts are on ABC's website). Following this extended exposure of alleged illegal activity by Australian officials and intelligence agents, Senator Xenophon called for a royal commission and Crikey.com dubbed the lack of accountability "an international embarrassment." However, when independent Senator Xenophon and Greens Senator Scott Ludlam tried to have the Senate resolve to return Witness K's passport, the government blocked it. On 4 December, Xenophon revealed that the Australian government could charge Witness K and Bernard Collaery, perhaps cancelling their citizenship if they have dual nationality.
On 3 December, Australian citizens and others protested at DFAT's Melbourne office (right), showing renewed energy in the Timor Sea Justice Campaign. Timorese Ph.D. student Mica Barreto Soares spoke to the group. In Parliament, MP Kelvin Thomson urged Australia to "practice what it preaches" regarding international law and UNCLOS.
Planning Minister Xanana Gusmão reiterated Timor-Leste's position when he received an honorary doctorate from Melbourne University on 7 December, 40 years after Indonesian invaded Timor-Leste with Australian diplomatic support: "The Government of Timor-Leste has made the permanent delimitation of maritime boundaries a national priority as it is the final step in our long struggle for full sovereignty.
Indonesia and Timor-Leste have commenced maritime boundary negotiations and have agreed to abide by the principles set out in the 1982 United Nations Convention on the Law of the Sea and international law. Australia on the other hand has refused to negotiate a maritime boundary with Timor-Leste and Timor-Leste cannot refer the issue to be determined by an independent umpire. This is because in 2002, on the eve of Timor-Leste’s independence, Australia withdrew from the compulsory dispute mechanisms set up under the United Nations Convention on the Law of the Sea for any disputes relating to the delimitation of its maritime zones.
Like your new Prime Minister Malcolm Turnbull, I am an optimist. And so, I look to the new Australian Government to recognise that it is in Australia’s national interest to have a clearly defined permanent maritime boundary in the Timor Sea. From the Timorese perspective we are fighting for justice in the Timor Sea so that we can finish the work of our struggle for independence and achieve our rightful sovereignty under international law. We are continuing to be idealists."
On 8 December, the Australia Timor-Leste Business Council reported on their meeting the previous day with Australian ambassador to Timor-Leste Peter Doyle, whom they had asked to reduce sovereign risk by agreeing to a permanent maritime boundary. Their press release prompted comments from Asia Pacific Analysis and La'o Hamutuk.
On 13 December, the Australian Timor Sea Justice Campaign lauded local councils in Moreland (Melbourne), Leichhardt (Sydney) and Mornington Peninsula Shire for supporting Timor-Leste's right to a fair maritime boundary.
Australian commentators are criticizing politicians for invoking international maritime law for the South China Sea while evading it for the Timor Sea. Writing in the Lowy Interpreter, Greg Raymond took on Shadow Defense Minister Conroy over this, and a few days later, Sydney Morning Herald Editor Tom Allard lambasted Prime Minister Turnbull as "breathtakingly hypocritical."
Indonesian President Joko Widodo visited Timor-Leste on 26 January, reiterating his commitment to negotiate land and sea borders with Timor-Leste. On the same day, many people attending the official Australia Day reception at Timor Plaza wore badges with the image at left. Click on it to download a higher-resolution version, and display it proudly.
On 2 February, the ABC television program Lateline (video) reported that Australian Foreign Minister Julie Bishop had declined to restore Witness K's passport that had been cancelled in 2013, continuing to prevent the whistle-blowing former intelligence agent from leaving the country. On the same day, the Socialist Alternative newspaper RedFlag published How Australian imperialism rips off Timor-Leste and the Crikey website editorialized that Witness K must be freed. On 11 February, Australia's Department of Foreign Affairs told a Senate hearing that it would allow Witness K to give evidence in the Hague but would not restore his passport.
On 3 February, Timor-Leste's Council of Ministers enacted Resolution 4/2016, naming former Prime Minister Xanana Gusmão as Chief Negotiator for maritime boundary negotiations with Australia and Indonesia, with responsibility for defining strategy. The Council of Ministers subsequently redefined (also Tetum) the powers of the Maritime Boundary Commission by passing Decree-Law 4/2016 of 16 March.
On 9 February, Australian media reported that Australia had spent more than a million dollars to defend itself in the ICJ case, according to the Attorney General. We believe that actual costs were probably much higher. Timor-Leste had to hire lawyer and probably spent much more than that.
On 10 February, Shadow Foreign Minister Tanya Plibersek, acknowledging that the boundary dispute had "poisoned our relations with our newest neighbor" promised that a future Labor Party government would negotiate in good faith with Timor-Leste and submit to international adjudication or arbitration if negotiations fail. Although she did not mention support for a Median Line boundary or the necessity of repealing CMATS paragraphs 4.6 and 4.7 before such processes could proceed, her statement was reported by the Sydney Morning Herald, Guardian, and The Australian as a significant change in policy. It was welcomed by the Timor Sea Justice Campaign the Australian Council of Trade Unions/APHEDA, the Australia East Timor Association SA and Timor-Leste's government.
ABC Lateline interviewed Tanya Plibersek that evening, and she further developed her position in the Huffington Post that night. Damien Kingsbury encouraged more discussion, while DFAT complained that Labor had not consulted with them prior to announcing it.
The Australian Embassy in Dili circulated a misleading article written by Stephen Grenville for the Lowy Institute. A few days later, Lowy published the more balanced How far is fair enough? New moves in Timor Gap's 40-plus years of boundary battles by Michael Leach and Concession is the price for a rules-based order by Malcolm Jorgensen. Grenville wrote a rebuttal on 24 February and another on 3 March, and DFAT's Allaster Cox underlined the Australian government position the following day. Timor-Leste advisor Steve Bracks responded that Australia is out of step with international best practice on 9 March. On 11 April, Edio Guterres wrote from this side of the Timor Sea that Timor-Leste is speaking with one voice.
Monash and Swinburne Universities organized two public events in mid-February Click on a name to download their presentation or statement, or on the seminar titles for videos and summaries.
Maritime Boundaries in the Timor Sea: Perspectives in International Law, 15 February. Speakers included Don Rothwell (ANU College of Law), Don K. Anton (Griffith University Law School) and Dr I Made Andi Arsana, (Gadjah Mada University, Indonesia) and Hon. Abel Guterres (Timor-Leste Ambassador to Australia). The Australian government was invited but declined to present.
Crocodiles in the Timor Sea: development and socio-economic implications of the maritime resources dispute, 16 February. Speakers included Kirsty Sword Gusmão, Brett Inder (Monash University) and Sara Niner (Monash).
On 15 February, the Sydney Morning Herald reported that Timor-Leste's Prime Minister had written to his Australia counterpart asking to open talks on a permanent maritime boundary, and another SMH article implied that Timor-Leste would drop its arbitration case about spying if Australia responded positively. TL Ambassador Abel Guterres had told a Melbourne conference that "if we decide to sit at the table and negotiate, perhaps we don't need to go through all this process – unnecessarily exposing sensitive materials."
In Dili, the TimorGAP state-owned oil company continues to proceed with planning for Greater Sunrise development, regardless of bilateral political problems and the global depression in oil prices and activities.
On 17 February, La'o Hamutuk and about 50 people from the Movement Against the Occupation of the Timor Sea held a workshop on historical, legal, political and strategic issues relating to the boundary dispute between Australia and Timor-Leste, to prepare for a peaceful action to mark the anniversary of CMATS coming into force on 23 February 2007. Download the Tetum-language PowerPoint (also PDF); an English translation will be posted soon.
The following weekend, Fairfax newspapers ran articles on related topics: Oil, spies and sea cucumbers: East Timor takes on Australia and 'Sounds like fun': Aussie diplomats mocked reports of Indonesian rape and murder of Timorese, helping more Australians become aware of their government's shameful record. This history, including its connection with the Timor Sea dispute is related in detail in East Timor and the Emperor's "old" clothes by Prof. Adam Henry.
On 22 February, protest organizers wrote a letter to Australian Ambassador Peter Doyle explaining their peaceful intentions. More than 1,000 Timorese citizens and a few international supporters brought their concerns to the Australian Embassy in Dili on 23 February, where they rallied peacefully for many hours under a hot sun and were covered by social and Australian media, and others including New Zealand, Qatar, West Timor, Channel News Asia and UCANews. Click on any of the photos below to see them larger.
Very few Australians or other foreigners attended the demonstration, and La'o Hamutuk's blog Solidarity Should be Shown pondered why, and was reposted in Australia as “Governu Australia … Na’ok-Teen” – Scare tactics and peaceful demonstrations in Timor Leste.
On 29 February, the Timor-Leste government Maritime Boundary Office officially launched its website, which includes this Fact Sheet and other materials in English, Tetum and Portuguese. Prime Minister Dr. Rui Maria Araùjo spoke at the launch (also Tetum).
On 1 March, the Sydney Morning Herald reported that Australian Prime Minister Malcolm Turnbull had rejected Timor-Leste PM Rui Araujo's request to begin maritime boundary negotiations, although Turnbull did agree to less focused discussions.
Australian Governor-General Sir Peter Cosgrove visited Dili on 3 March. Although he did not have time to meet with MKOTT leaders, they wrote him an open letter (also Tetum) expressing their concerns, which was reported in New Zealand. However, the Governor-General heard Timor-Leste's frustration with Australia's position on maritime boundaries from virtually everyone he met, including the four political parties in Parliament (statements in Tetum), the President of the Republic and veterans' representatives.
More protests are happening in March in Dili, Canberra, Melbourne, Adelaide, Sydney, Jakarta, Manila, Kuala Lumpur and elsewhere. This Facebook page has been set up for them. The first was outside Parliament House in Canberra on 15 March (photo at left), and included speeches from Kelvin Thompson (ALP MP for Wills), Senator Scott Ludlam (Greens foreign affairs spokesperson) Senator Nick Xenophon (independent SA), Senator John Madigan (independent VIC), Bernard Collaery (lawyer for ASIO whistleblower 'Witness K') and historian Dr Adam Hughes Henry. Peter Job read a statement by the Hon Tanya Plibersek, Deputy Leader of the Opposition and Shadow Minister for Foreign Affairs. Bernard Collaery's speech was picked up by the Canberra Times, which ran one article on Australian intelligence bugging his Canberra office, and another on his statement that high Australian officials knew of the 2004 bugging of Timor-Leste's cabinet rooms. All speakers emphasized the importance of seeking a just settlement with the people and government of Timor-Leste.
On 20 March, Australian priest and law professor Fr. Frank Brennan wrote in Eureka Street Deja vu for Timor as Turnbull neglects boundary talks, summarizing the current diplomatic stalemate.
As the 21-24 March week of protests begins, the Australian Timor-Sea Justice Campaign (TSJC) and U.S. East Timor and Indonesia Action Network (ETAN) shared MKOTT's appeal and asked people from around the world to share photos of themselves supporting Timor-Leste's boundary rights. Here are a few which have come in from around the world (click on a photo to see it larger):
Many thousands of people joined the protest in Dili on the morning of 22 March, supporting MKOTT's Declaration to the Government of Australia (also Tetum) and Mandate to the Government of Timor-Leste (also Tetum). Here are a few initial photos
The protest was covered by Timorese newspapers, RTTL, the Sydney Morning Herald, Guardian, SBS, BBC, ABC, JPNN, Tribunnews, RedFlag, TamilNet and other media. Some Australian media also provided context, including articles by Tom Clarke, Edio Guterres, Cayla Dengate, David Webster, Manuel Ribeiro, Ann Wigglesworth, Green Left and Natassia Chrysanthos. More than 100 international students in Costa Rica added their support, as did others studying in Indonesia, and the Herald Sun considered China's perspective.
The Australia Timor-Leste Business Council added its voice, writing that "the certainty provided by the delimiting of the maritime boundary will be good for business in both Timor-Leste and Australia." ABC Television's "The Weekly" satirical news program did a piece which you can watch on YouTube or download as a 15 MB podcast, and the widely-read British magazine The Economist sent a reporter to Dili to write Line in the sand: Trying to squeeze money from the last drop of oil.
On 11 April, Timor-Leste announced (also Tetum) that it had just notified Australia that it was initiating "compulsory conciliation proceedings under the UN Convention on the Law of the Sea (UNCLOS), with the aim of concluding an agreement with Australia on permanent maritime boundaries." The action, explained by a government fact sheet (also Tetum), raises complex legal issues as it navigates among UNCLOS dispute resolution provisions, Australia's unilateral 2002 withdrawal from UNCLOS processes for maritime boundary disputes (see below for related documents), and the "gag rule" in CMATS Article 4, especially paragraph 6. Nevertheless, as RDTL spokesperson Agio Pereira explained on Australia's Radio National, Timor-Leste is frustrated with Australian intransigence for the past 14 years, concerned that 'provisional' arrangements could evolve to become permanent, and seeks to look toward the future and accelerate the eventual settlement of the maritime boundary as foreseen in the existing revenue-sharing agreements. Timor-Leste's action was reported by the Sydney Morning Herald, South China Morning Post, LUSA and ABC.
Australia's government sharply criticized the move, saying that there would be no further discussions. However, the Australian Labor Party and Green Party welcomed Timor-Leste's action, promising to negotiate a new and fair maritime boundary with Timor-Leste, and SBS compared contrasting party policies.
On 13 April, former Prime Minister and Chief Boundary Negotiator Xanana Gusmão brought the issue to Secretary-General Ban Ki-Moon at the United Nations in New York. Xanana issued a press statement there (watch press conference on UN TV), and the Government issued a press release in Dili (also Portuguese). The press conference was covered by IPS and other media.
Several Australians with long connections to Timor-Leste, including academic Clinton Fernandes, journalist John Martinkus, and geologist Mike Sandiford, wrote articles to place the current dispute in historical context. Others, like Rebecca Strating, tilted toward Canberra's perspective. Timorese veterans (aided by their government), diplomats and negotiators reached out to people in Australia and the region. Former President Jose Ramos-Horta wrote Australia needs to negotiate not litigate with neighbours in major Australian newspapers.
Protests continued in New Zealand and elsewhere, as Timor-Leste citizens and government reach out to friend around the globe.
La'o Hamutuk will continue to update this page and we welcome information from all sources.
More recent commentary is linked to from within the text above, as there are too many articles to list here.
Tansá Timor-Leste-Australia Seidauk iha Fronteira? husi Juvinal Dias ba TLSA ( mos 3 MB PowerPoint ka 1.4MB PDF), Outubru 2013
Many submissions, including from La'o Hamutuk, to the Australian Parliamentary Inquiry on TL-Australia relations, March-May 2013
Terminasaun Tratadu CMATS no nia implikasaun ba Timor-Leste / Implications for Timor-Leste of Terminating the CMATS Treaty by LH in local newspapers, (11 Feb. 2013)
LH index page on The Greater Sunrise Oil and Gas Project (also Tetum) regularly updated since 2010
Australia's Carbon Tax and Timor-Leste (April 2012)
LH Analysis of how much money Australia has stolen (English/Tetum) from Timor-Leste via the Laminaria-Corallina oil field (February 2015)
LH Book Sunrise LNG in Timor-Leste: Dreams, Realities and Challenges and related links, February 2008
La'o Hamutuk submission to the Australian Parliament Joint Standing Committee on Treaties, 16 March 2007
The Committee has published a report and seven submissions on CMATS, including from
Robert King (long history of negotiations since 1960s)
All the submissions can be downloaded from http://www.aph.gov.au/house/committee/jsct/6_7_february2007/subs.htm.
Now you CMATS, now you don't. By Dr. Mark Byrne, UNIYA in New Matilda, 5 March 2007
La'o Hamutuk letter to Timor-Leste Parliament regarding CMATS Treaty, 14 February 2007
La'o Hamutuk public meeting on CMATS Treaty, 18 January 2007
La'o Hamutuk Bulletin comprehensive analysis of the history and meaning of CMATS Treaty, April 2006
La'o Hamutuk statement on CMATS Treaty, January 2006
ETAN/U.S. statement on CMATS Treaty, January 2006
Timor Sea Justice Campaign (Australia) release on Treaty, January 2006
Questions and Answers on the CMATS Treaty by Jeffrey J. Smith, January 2006 (PDF)
Australia notified treaty bodies that it was unilaterally withdrawing from legal mechanisms for settling maritime boundary disputes (press release) (March 2002):
Australian National Interest Analysis on Sunrise International Unitization Agreement (March 2003)
Parliamentary media release on CMATS inquiry (8 February 2007)
Letter from Alexander Downer to Joint Standing Committee on Treaties invoking "National Interest Exemption" (22 February 2007)
Transcript of Parliamentary Treaties Committee hearing (26 February 2007)
Transcript (Hansard) of debate on CMATS in the Australian Parliament (28 February 2007)
Transcript (Hansard) of debate on CMATS in the Australian Senate (22 March 2007)
Vienna Convention on the Law of Treaties (23 May 1969)
Australia-Indonesia Seabed Boundary Treaty (9 October 1972). Article 3 leaves the laterals open and Article 5 relinquishes claims to the other's area. Timorese scholar Tomas Freitas has analyzed this treaty.
Australia-Indonesia Timor Gap Treaty (11 December 1989). Establishes Zone of Cooperation (later JPDA) for joint exploration; illegally shares occupied territory of RDTL.
Timor Sea Treaty and Exchange of Notes (signed and effective 20 May 2002)
Timor-Leste Maritime Zones Act (20 September 2002)
Timor-Leste's Application and Requested Measures to International Court of Justice regarding raid on lawyer's office (17 December 2013)
Other ICJ documents are linked to from the text above during the period when they were issued.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)