La’o Hamutuk

Bulletin  |  Surat Popular  |  Topic index  |  Reports & Announcements  |  Updates
Reference  |   Presentations  |  Mission Statement  |  LH Blog  |  Search  |  Home

Information about the Treaty between Australia and Timor-Leste on
Certain Maritime Arrangements in the Timor Sea (CMATS)

Written March 2008.   Updated 24 April 2014

Liga ba pajina ida ne'e iha lingua Tetum.

Contents of this page

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.

Background

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.

During 2013, Timor-Leste's government asked that the treaty be invalidated, because Australia 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.)

CMATS treaty texts and attachments

Events in 2012

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 Beacu 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.

 

2013

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:

  • There are no boundaries or borders in the Timor Sea between Australia and Timor-Leste to redraw. During the 12 years of Timor-Leste's sovereignty, Australia has never agreed to define a maritime boundary. The three agreements signed so far are about managing petroleum development and revenues. Many people in Timor-Leste and elsewhere feel that this country’s struggle for independence is incomplete until its actual borders (which involve many more issues than oil and gas) are defined. In effect, Australia continues to occupy maritime territory which would be part of Timor-Leste under a fair, legal boundary determination – prolonging illegal territorial control taken during Indonesia’s illegal occupation of Timor-Leste’s land.

  • The CMATS clause allowing unilateral termination becomes available if no Sunrise development plan has been formally approved by Australian and Timor-Leste regulators by 23 February 2013. A development plan is a detailed engineering and commercial analysis, much more complex than just agreeing on the basic concept of where the gas should be liquefied.

  • There is a complex linkage among the Timor Sea Treaty (TST, signed in 2002, ratified in 2003), the Sunrise International Unitization Agreement (IUA, signed in 2003, ratified in 2007) and the CMATS Treaty (signed in 2006, ratified in 2007). In brief, Timor-Leste needed the TST in 2002 so that Bayu-Undan could go ahead, but Australia refused to ratify the TST until Timor-Leste signed the IUA in 2003 – which Senator Bob Brown termed “blackmail.” Timor-Leste then declined to ratify the IUA, which it had signed under duress. In the CMATS compromise four years later, Timor-Leste ratified the IUA and acquiesced with a gag rule on boundary discussions in return for 50% of Sunrise upstream revenues.

  • The Greater Sunrise contracts between Woodside (and its joint venture partners) and the governments of Timor-Leste and Australia were signed in 2003 (replacing contracts with Australia and Indonesia during the illegal Indonesian occupation). The CMATS Treaty was signed in 2006 and came into force on 23 February 2007. Its termination would not affect contracts signed five years earlier. Those contracts are unfortunately secret, but we understand that they will be in force until at least 2037, unless the four companies and two governments agree to amend them. Although CMATS termination could be a consideration in analyzing the project's risks and future prospects, Article 27.3 of the IUA says that the contractual terms for the companies "shall continue under terms equivalent to those in place under [the IUA]" even if a permanent maritime boundary is decided.

  • If Timor-Leste or Australia decides to exercise its right under CMATS Article 12 to terminate the treaty at any time after February 23, processes to establish a maritime boundary could resume. The CMATS treaty will automatically would come back into force (restoring the 50-50 Sunrise revenue sharing) if and when Sunrise production begins in the future.  It's unclear how termination of CMATS would affect the Timor Sea Treaty

  • Under international treaty law, two signers to a bilateral treaty can always decide to cancel or modify the treaty. In other words, if Australia had been willing to discuss maritime boundaries at any time since 2006, both governments would have agreed to revoke the CMATS gag rule. Although the TST and IUA have specific articles saying that they "may be amended or terminated at any time by written agreement between Timor-Leste and Australia,” these are unnecessary, as this principle applies to all agreements between governments, as spelled out in the Vienna Convention on the Law of Treaties.

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, Labour 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

Timor-Leste seeks arbitration to overturn CMATS

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, 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.

As Timor-Leste celebrated the 38th anniversary of its Proclamation of Independence on 28 November, 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.

Adding insult to injury

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. 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.

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.

2014

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 firm Steptoe & Johnson analyzed the implications of the ICJ ruling for other investor-state arbitration cases, while Clinton Fernandes suggested that good-faith negotiations are key to unravelling the dispute between the two countries.

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 in an effort to prevent him from travelling to testify to the panel, but technology could allow other options.

Commentary and Analysis (most recent first).  See here for commentary in Tetum.

Australian Government and Parliamentary materials (chronological order)

Relevant legal documents (chronological order)

Link to index of articles on this website about oil and natural gas
 

The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)
Institutu Timor-Leste ba Analiza no Monitor ba Dezenvolvimentu
Rua dos Martires da Patria, Bebora, Dili, Timor-Leste
P.O. Box 340, Dili, Timor-Leste
Tel: +670-3321040 or +670-77234330
email: 
info@laohamutuk.org    Web: http://www.laohamutuk.org    Blog: laohamutuk.blogspot.com