By Dr George Venturini
(Much of the material in this page is drawn from the work of La’o Hamutuk, the Timor-Leste Institute for Development Monitoring and Analysis, which has monitored and campaigned for Timor-Leste’s rights for two decades. For more detailed information on this and related issues, see www.laohamutuk.org. Current and updated information on the maritime boundary dispute with Australia is at https://www.laohamutuk.org/Oil/Boundary/18ConcilTreaty.htm).
In mid-July the Northern Territory Bar Association held its biennial conference in Dili. In attendance were also two distinguished speakers: the lawyers Christopher Ward and Bernard Collaery. 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 C.M.A.T.S. Treaty negotiations.”
A few weeks later, the Victoria Local Government Association, under the banner ‘Working together with Timor-Leste’ at its conference in Melbourne adopted similar resolutions.
The International Court of Justice Annual Report, covering August 2013 through July 2014, includes several pages about the Timor-Leste v. Australia case. (U.N. General Assembly Official Records Sixty-ninth Session Supplement No. 4, A/69/4, Report of the International Court of Justice, 1 August 2013-31 July 2014, United Nations, New York, 2014)
The July/August edition of Petroleum Economist published ‘Oil, gas and spy games in the Timor Sea: Claims of skullduggery reignite battle for riches in contested waters. (‘Oil, gas and spy games in the Timor Sea’ – Damon Evans).
Every other honest and self-respecting government would have been concerned! But what did the Australian Government of Prime Minister Tony Abbott?
On 1 September 2014 The Sydney Morning Herald was able to report that the Australian government has asked the 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.
There were questions in the Senate, but the answers went absolutely nowhere, just lost in logorrheic fog.
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 several sources. (H. Alexander, ‘UN court postpones East Timor spy case’, The (Melbourne) Age, 6 September 2014; A.B.C. Radio Australia, ‘East Timor spy row: Australia, East Timor postpone ICJ case to seek ‘amicable settlement’ ’, 6 September 2014).
A few days later, former President Jose Ramos-Horta generously excused Australia’s spying by saying that all nations do it, but the view of PoliticOz was that Australia could still be “the first country to have a treaty invalidated [by the Permanent Court of Arbitration] on grounds of fraud. (‘The politics of the day’, 8 September 2014, The Monthly).
On 19 October it seemed that it might still possible to negotiate over the boundaries, reserving the right to go back to court if negotiations fail. Talks began quietly and by the end of October it seemed that negotiations were possible and there was a chance that Timor-Leste could establish a boundary which would give it a larger share of Greater Sunrise. It was then that The Australian Financial Review and Reuters reported that Woodside was more willing to consider building a liquefied natural gas plant for Greater Sunrise onshore in Timor-Leste.
The boundary controversy continued to receive attention at industry meetings. On 14 January 2015 Timor-Leste passed Decree-Law No.2/2015 to set up a Council for Definitive Delimitation of Maritime Boundaries, and Woodside hoped that the process would be resolved soon.
According to the Woodside’s annual report, dated 18 February but apparently written before the decision was taken, “[Woodside would] 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.”
Woodside’s chairman was slightly more diplomatic in his address to the 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.”
The view of Dr. Rui Maria Araùjo, Timor-Leste’s new Prime Minister, was given quite clearly when he stressed that he wanted to discuss issues with Australia “in an honest and friendly way,” and did not want Australian charity.
On his part, Timor-Leste’s Minister of Petroleum said that his country was ready to buy Woodside’s share in the project.
On 1 March 2015 Australian media reported that Australian Federal Police were still investigating the whistle-blower, referred to by now as Witness K, who informed Timor-Leste about Australia’s spying on government offices in 2004. Since late 2013 they had 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.
In a Wall Street Journal op-ed column on 11 March former 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.” (X. Gusmao, ‘In East Timor, the Beat Goes On. This young nation is ready for a new generation of leaders to take the helm’, The Wall Street Journal, 11 March 2015).
Former Prime Minister Xanana Gusmão visited Australia in mid-March, disclosing that he had known about Australia’s spying for many years. He told the A.B.C. radio that Timor-Leste will not give up in the boundary and oil, maritime dispute with Australia.
Mr. Gusmão spoke in a language unfamiliar to Australians when he said: “I participated in the struggle for independence for 24 years. When we got independence after the referendum in 1999, becoming president in 2002, I told the people that independence is not a flag,” he said.
“Independence is not having a state, presidents, parliaments, governments. Independence is to be the owner of our sovereignty. And sovereignty is the capacity to decide what belongs to us, what is ours.”
Very diplomatically he added that: “ … Australia is a country of principles. Not playing with principles.” … and he warned: “We will continue to fight in the international area. We have a cause, and we have a case in the International Court of Justice … in this, I can tell you we will not give up.” (A.B.C., Canberra, News).
On 3 May the Timor-Leste’s Government expressed its “appreciation” for Australia’s decision to return all documents and data seized from Mr. Bernard Collaery’s Canberra office in December 2013. Australia had written to the International Court of Justice that it wished 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 I.C.J. case had expired on 3 March.
On 12 May Timor-Leste’s Government announced that Australia had returned the materials taken from Collaery’s Canberra office. At about 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.” (B. Keane, ‘Blustering Brandis makes a mockery of IGIS vaunted ‘independence’ ’, Crikey Insider, 27 May 2015).
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.” (A.C.T.U. Congress, Timor Sea Final Resolution, Melbourne, 26-28 May 2015).
On 3 June the Timor-Leste’s Government informed that it would ask the I.C.J. to terminate the Timor-Leste v. Australia case about the raid on Mr. Bernard Collaery’s office. At the same time, it indicated that it was reopening the case it filed in April 2013 with the Permanent Court of Arbitration, asking that the 2006 C.M.A.T.S treaty be annulled because Australia spied on Timorese officials while it was being negotiated. (T. Allard, ‘East Timor ‘reactivates’ bid for new maritime boundary with Australia’, The Sydney Morning Herald, 3 June 2015).
On 11 June Mr. 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. (B. Keane, ‘Open and shut: ASIS’ crime, and the Labor-Liberal cover-up’, Crikey Insider, 12 June 2015).
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 I.C.J. press release the following day. (H. McDonald, ‘Australia called to Hague on Timor gap’, The Saturday Paper, 13 June 2015) The C.M.A.T.S. case in the Permanent Court of Arbitration would continue.
Australian authorities continued to prepare for criminal prosecution against Witness K, the former A.S.I.S. 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 whistle-blower from testifying before the arbitration panel in The Hague. (T. Allard, ‘Timor spy scandal: former A.S.I.S. officer faxing prosecution’, The (Melbourne) Age, 22 June 2015) Mr. Collaery, who was representing Witness K, called the case “a showdown between good and evil” and “an unprecedented attack on the Rule of Law”, but said that he remained confident that “justice will triumph so long as our courts are able to operate.”
On 29 June Timor-Leste’s Consultative Commission for the Final Delimitation of Maritime Boundaries held its first meeting. Prime Minister Rui Araùjo met with other ministers, former Presidents and former Prime Ministers to discuss the role of the new body; Mari Alkatiri, Alfredo Pires and Hernani Coelho were unable to attend.
On 26 July, the Labor Party annual conference passed a resolution to the effect that, if elected, Labor would enter maritime boundary negotiations with Timor-Leste, a position which was welcomed by the government of Timor-Leste.
Timor-Leste discussed its boundary concerns with Indonesia in late August. Prime Minister Rui Araùjo, Xanana Gusmão and others travelled to Jakarta where they discussed land and sea borders with Indonesian President 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 within the year and maritime boundaries before Araùjo’s term would end in 2017. (‘Prime Minister leads High Level Delegation of the Sixth Constitutional Government on Official Visit to Indonesia’, Media release, 25 August 2015).
The Sydney Morning Herald had reported the previous week that the Australia-Indonesia maritime boundary is a long-standing cause of friction between Timor-Leste’s larger neighbours. (J. Topsield, ‘Australia and Indonesia like two porcupines’, The Sydney Morning Herald, 19 August 2015.
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 to be held on 29-30 October. (‘Maritime boundary consultations begin with Indonesia’, Media release, 23 September 2015).
Timor-Leste’s Maritime Boundaries Commission met on 9 September, continuing its arbitration challenges to Australia. (M. Skulley, ‘Timor-Leste’s battle to settle its maritime borders resumes’, The Saturday Paper, 12 September 2015).
When the Australian Prime Minister Tony Abbott was replaced by Malcolm Turnbull, it became unclear whether Australia would take a more reasonable position. On 20 September ‘Interfet’ (International Force in East Timor) 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 a Timor-Leste weekly. (C. Taylor and S. Lewis, ‘Horta: I’m hopeful and convinced that we can work out an improved maritime agreement’, Tempo Semanal, 23 September 2015).
In late September Prime Minister Rui Araùjo, accompanied by Jose Ramos-Horta, Xanana Gusmão and others, went to New York for the U.N. General Assembly. The Prime Minister raised the issue of Maritime Boundaries at Columbia University and in other fora, and his interview was carried by dozens of media outlets all over the world. (‘East Timor Primed for Legal Tussle With Australia’, International New York Times, 30 September 2015).
On the morning of 1 October Messrs. Araùjo, Ramos-Horta and Gusmão and Timor-Leste Maritime Boundary Office head Ms. Elizabeth Exposto spoke at an International Peace Institute seminar on “Timor-Leste’s Story: Securing its Sovereignty over Land and Sea.” 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.” (‘Statement by His Excellency the Prime Minister of the Democratic Republic of Timor-Leste, Mr. Rui Maria de Araùjo, at the 70th Session of the General Assembly of the United Nations’, U.N., New York, October 1, 2015).
On 7 October the Prime Minister laid out Timor-Leste’s position in a Washington Times op-ed. ‘Timor-Leste, hiding in plain sight on the world map’, while later that month, Australian Foreign Minister Julie Bishop and Timor-Leste Investment Minister Xanana Gusmão argued their positions in ‘Australia stands by Timor’, The Saturday Paper, 17 October 2015.
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 estimated that Australia took in more than two billion dollars which should have gone to Timor-Leste since the field began production in late 1999. (‘How much oil money has Australia already stolen from Timor-Leste? A look at Laminaria-Corallina’ – Updated 4 March 2018).
On 20 October 2015, in the Australian Parliament, Attorney-General Brandis awkwardly evaded questions on the settlement of the I.C.J. case, A.S.I.O.’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 I.C.J.’s work. (‘Timor-Leste appreciates the work of the International Court of Justice’, Media release, 11 November 2015).
Continued Saturday – The spying on Timor-Leste case … et cetera (part 5)
Previous instalment – The spying on Timor-Leste case … et cetera (part 3)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.email@example.com.
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