|Subject: NST: An ‘unfair’ deal for
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An ‘unfair’ deal for Timor Leste
IT should come as no surprise that Australian Prime Minister John Howard’s presence in Dili on the day of Timor Leste’s Independence on May 20, 2002 was also to sign the new Timor Sea Treaty (TST).
Timor Leste’s government, on Independence Day, and its people never had the opportunity to fully debate and consider the implications of the TST.
The fundamental problem remains Australia’s persistent refusal to delimit its maritime boundary with Timor-Leste using the principle of equidistance, as laid down under international law, where the opposite coasts are less than 400 miles apart.
However Australia has, in its treaty with New Zealand concluded on July 25, 2004, accepted the principle of equidistance as the basis for the delimitation of its maritime boundaries.
The TST did not deal with the issue of the delimitation of Timor Leste’s maritime boundary with Australia. It also did not deal with vast areas of the Timor Sea that have potentially significant hydrocarbon reserves. The biggest setback for Timor-Leste was the Australian withdrawal, on March 22, 2002, from the compulsory jurisdiction of both the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea.
Australia effectively ensured that Timor Leste’s chances of taking the dispute for resolution by an independent international tribunal were destroyed for the foreseeable future.
However, we submitted a proposal to Mari Alkatiri that would have challenged that withdrawal.
The revenue from oil and gas reserves is the sole lifeline for the impoverished masses of Timor Leste. Following independence, the Alkatiri government faced increasing political and social unrest as a result of a stagnant economy and high levels of unemployment.
The Australian reluctance to proceed expeditiously with negotiations to unlock the resources of the Timor Sea led to Alkatiri’s government being hemmed into a corner and effectively forced to accept Australia’s proposals.
Asia Times noted in May 2002 that senator Bob Brown was thrown out of parliament for refusing to withdraw his allegations that Howard had "blackmailed" Alkatiri by insisting that if the TST were not signed in Dili, the Australian parliament would delay its ratification.
Although CMATS (Certain Maritime Arrangements in the Timor Sea) is a bilateral treaty, its provisions are heavily biased against the interests of Timor Leste.
First, both Australia and Timor-Leste have agreed to a 50-year moratorium on the determination of their maritime boundary or until five years after the exploitation of certain areas cease, whichever is the earlier.
However, despite this moratorium, Article 4(2) of CMATS permits both nations to continue activities (including the regulation and authorisation of existing and new activities) in areas in which their respective domestic legislations, as of May 19, 2002, authorised activities in relation to petroleum or other resources of the seabed and sub-soil.
And in a side letter dated Jan 12 last year, Australian Foreign Minister Alexander Downer informed his then Timorese counterpart, Jose Ramos-Horta, that as of May 19, 2002, Australian legislation permitted such activities in the area outside the Joint Petroleum Development Area established under the Timor Sea Treaty and south of the line agreed by Indonesia and Australia during Indonesia’s occupation of Timor Leste.
Surprisingly, Ramos-Horta conceded in a side letter on the same day that Timor Leste had no domestic legislation that applied to that area on May 19, 2002 that would entitle it to conduct petroleum activities there, although Timor Leste had defined and claimed its sovereignty over the area claimed by Australia.
The result is that Australia retains the rights to prospect for and extract hydrocarbon resources in the disputed areas but Timor Leste has effectively given up all such rights for at least 50 years.
This provision, which allows Australia to unilaterally exploit hydrocarbons in disputed areas, constitutes a grave breach of Timor Leste’s sovereignty.
Secondly, under the terms of CMATS, neither party is allowed to raise the issue of maritime boundaries or delimitation in the Timor Sea before any court or tribunal whatsoever. This means that Timor Leste has been forced to give up the right to take the issue of maritime boundary delimitation to any international tribunal.
This again is a serious transgression of the sovereignty of Timor Leste to take advantage of the dispute resolution mechanisms under the framework of international law.
Thirdly, CMATS also provides that "neither party shall raise or pursue in any international organisation matters that are, directly or indirectly, relevant to maritime boundaries or delimitation in the Timor Sea".
This extraordinary provision effectively gags Timor Leste from ever raising the issue of its maritime boundaries at any international fora, including the United Nations, for the next 50 years!
Finally, CMATS expressly provides that the parties are not under any obligation to negotiate permanent boundaries for the period of CMATS, which is 50 years or more.
Although Australia is at the forefront of providing aid and military assistance, the true measure of goodwill and help would be to simply accord to the Timorese what is rightfully theirs by delimiting their maritime boundaries under international law.
In order to do this, Australia can take the simple step of agreeing to once again accept the compulsory jurisdiction of the International Court of Justice or the International Tribunal on the Law of the Sea.
* Datuk Dominic Puthucheary, assisted by his partner Firoz Hussein, was adviser to then prime minister Mari Alkatiri and was among the legal advisers in the team that negotiated the Treaty between Australia and Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS), signed on Jan 12, 2006
Timor Sea Treaty ‘a win-win situation’ for both nations
Spokesman for Australia’s Department of Foreign Affairs and Trade replies:
THE Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS Treaty) and the International Unitisation Agreement for Greater Sunrise are together a landmark set of agreements which represent a good deal for both Australia and Timor Leste.
In negotiating the CMATS Treaty, Australia agreed to the proposal made by East Timor to find a solution that would enable the development of resources to proceed while setting aside the difficult issue of permanent maritime boundaries.
At the time of the conclusion of the CMATS Treaty, the Government recognised publicly that the treaty was a "win:win" for both Australia and Timor Leste, and said it had yielded the best possible outcome for the people of Timor-Leste. The CMATS Treaty will enable Australia and Timor-Leste to work co-operatively to allow the development of the Greater Sunrise field to proceed.
The CMATS Treaty raises Timor Leste’s share of the revenue from the Greater Sunrise field from an estimated US$6 billion (RM20 billion) to US$10 billion, 50 per cent of total revenue, over the life of the project.
The revenue under the CMATS Treaty will be in addition to the 90 per cent of revenues Timor Leste already receives under the Timor Sea Treaty from projects in the Joint Petroleum Development Area, from which Timor Leste has already received significant levels of revenue. The moratorium for 50 years on maritime boundary claims was proposed by Timor Leste and is an essential element of the CMATS treaty. The moratorium binds both Australia and Timor Leste, and provides the certainty of jurisdiction required to allow the exploitation of the Greater Sunrise field to proceed.
Australia considers maritime boundaries are best settled by negotiation, not arbitration. Australia has settled other boundaries by negotiation, including boundaries with France, Indonesia, Papua New Guinea and recently New Zealand.
Australia’s delimitation agreement with New Zealand is a fair and equitable outcome in accordance with the principles of international law. We note that parts of the delimitation boundary do not run along the equidistance line, consistent with international law and practice.
Any suggestion that Australia delayed the negotiation of the CMATS Treaty is wrong.