14 May 2010 The Hate/Love Triangle in the Timor Sea: Australia, Indonesia and East Timor Part Two - Dr Vivian Louis Forbes Summary This two-part Strategic Analysis Paper focuses on the Timor and Arafura Seas and, in particular, the three littoral States: Australia, Indonesia and East Timor (Timor-Leste), in terms of the manner in which they manage the maritime space and marine resources in the region. It alludes to the fables, examines and analyses the facts, exposes the fabrications and highlights the fictional issues that have come to the fore since 2002. It queries the provisions in, and failure of the entry into force, of the 1997 Treaty between Australia and Indonesia; overviews the 2002 Timor Sea Treaty between Australia and East Timor; and, focuses on the 2006 Certain Maritime Arrangements in the Timor Sea (the CMATS Treaty) which became effective on 23 February 2007. Part One acknowledged the neighbourly gestures, financial support and generosity of Australia towards Indonesia and East Timor and the need for Australia, within reason, to continue assistance to enhance the lifestyle of the coastal communities of Timor
Island and other island communities. It then gave an overview of the plethora of treaties that establish the lines of resource allocations. Now, in Part Two, it discusses the issues and problems and highlights some of the rhetoric and rumbles that have clouded the geographical reality and, furthermore, the goodwill that Australia has demonstrated when negotiating maritime jurisdiction with neighbours of its northern seas. FACTS, NOT FABLES It is well documented that the provisions of the maritime boundary agreements in 1989, 2002 and 2006 (as discussed in Part One of this paper), were perceived by many as being too generous to both East Timor and Indonesia, indeed, to a degree of fault on the part of the Government of Australia. The new maritime arrangements agreed with East Timor under these treaties are on top of the already generous sharing arrangements within the JPDA under the existing 2002 Timor Sea Treaty, where East Timor receives 90 per cent of revenue from production of hydrocarbon resources, which may be worth as much as US$15 billion ($16.9 billion). East Timor s Petroleum Fund, set up to receive and administer the revenues it receives from oil and gas sales, now has a balance of over US$1 billion from exploitation of resources in the JPDA alone. Australia has recognised the rights of foreign fishermen; in particular, those from the neighbouring Indonesian islands to operate in the Arafura and Timor Seas provided they carry out those activities in traditional mode and not on grand-scale commercial operations. There are numerous recorded incidences when alien fishers have drifted into Australian territorial waters and abused the regulations and rules that are in place for the sustainable development of the fisheries. Rhetoric and Rumbles Some Government and NGO officials from East Timor and Australia continue to voice rhetoric for political gains. Unconstructive comments also emanate from groups in Australia, East Timor and the United States, such as the East Timor and Indonesia Action Network (ETAN), Oxfam, La o Hamutuk and Green Left, which have accused Australia of blackmail and robbery in its attempts to take control of the hydrocarbon reserves in the Timor Sea. Unfortunately such comments do not accord with the facts alluded to above. For example, in March 2004, fifty-three US Congressmen sent a letter to the Australian Government urging it to move fairly and expeditiously in the boundary negotiations with East Timor. This was surprising, especially in the light of the tardiness of the US Government to ratify the 1982 UN Law of the Sea Convention (a step that it was beginning to consider as late as 27 September 2007; by mid-may 2010, however, it has not submitted to the UN its instrument of ratification.) One must, perhaps, wonder at the motives of those involved. In late-2004 and early-2005, a Melbourne businessman behind a television advertisement accused the Australian Government of stealing oil and gas supplies from East Timor and was Page 2 of 7
determined to up the ante, by ambushing the Australian Prime Minister at upcoming public events. I m concentrating on marginal seats because that s where the Government will be the most sensitive. The Government can stop this campaign tomorrow just by doing a deal with East Timor that s fair and reasonable and that the East Timorese accept. I think I'm doing the right thing. If it's successful I will have done the right thing. (Ian Melrose) The Australian Democrat Party and the leader of the Green Party have voiced similar opinions. Some examples of the rhetoric: John Howard and Alexander Downer don t unfairly take East Timor s oil and gas revenue which it needs to build hospitals, school and to feed their children. You are not being fair to the East Timorese. Sadly, the Howard Government has proven that it is willing to bully and blackmail our neighbouring countries for its own financial gain. This disregard for International Law is damaging Australia s reputation in the region. The 50/50 split divided the spoils of illegal occupation neither Indonesia nor Australia owned this territory. Indonesia gave Australia a large share as payment for Australia s complicity in Indonesia s brutal occupation. Since 1999 the Australian Government has been stealing approximately US$1 million every day from East Timor. (Green Left, 26 Sept. 2007) We could have gifted the oil and gas royalties to the Timorese (Stott Despoja, 9 April 2007) It is alleged that Mr Melrose paid around $30,000 for a 30-second television commercial, which received maximum exposure during Australian Open men's quarter finals match on 26 January 2005. The advertisement alleged the Federal Government had stolen $2 billion in revenue from the East Timorese. Ian Melrose is a very wealthy and determined man. The Melbourne businessman, who owns a chain of optometrists, noted he would spend $2 million in 2005 on advertising campaigns and media stunts aimed at embarrassing the Prime Minister. Such statements issued by credible commentators can be unhelpful to East Timor s case for compensation, if such were the case. Geographical reality has been clouded by economic and social fabrications and fiction of a legal nature in matters relating to a potential maritime boundary in the Timor Sea. The distortions in the legal sense, manipulation of geophysical reality, sprinklings of political ideology and input of many of self-interest groups have complicated the arguments and brought to the fore the real concerns for the long-term benefits of the citizens of East Timor. Furthermore, maps and graphics put forward by official and un-official sources within and outside East Timor to present their case are misleading and mischievous. In the first instance, any set of lateral maritime boundaries projecting southward from East Timor Page 3 of 7
needs to be negotiated with Indonesia. Like many other researchers, the present author has delineated potential lateral boundaries for East Timor through objective interpretations and these do not match the East Timorese versions which, in any case, have been adapted or adopted from external sources. What If? It is a fact that geography was never intended to be equal and that Australia s sovereign rights, naturally and legally, extend to the edge of the continental shelf and beyond within scientifically determined and defined limits (Article 76 of the 1982 Convention). The reader is asked to consider these hypothetical questions. What would be the outcome if: (a) The United States and Cuba disputed a similar area of continental shelf rights between the two countries; or (b) The Governments of China and Taiwan had an identical problem? What would be the response, conversely, if the roles were reversed, with the East Timorese administrators owning the Australian landmass and adjacent seas and seabed and the government on the other side of the Timor Sea was claiming rights to resources that were in and on their continental shelf? It is very likely that the equidistant principle would be rejected. There may even be an inference that the claimants jump into the Timor Trough. The Australian Government would be doing a disservice to its citizens if it conceded to the Government of Timor-Leste s unrealistic demands with repercussions. The 1982 Convention only suggests that states produce an equitable solution in the event of a dispute over the perceived alignment of maritime jurisdictional limits between states. Australia is providing a more than equitable solution by generously giving 90 per cent and more in numerous aid packages. Despite this generosity, there is a small group of individuals in East Timor, and in Australia, who suggest that East Timor should gain an even larger slice of the profits. Geopolitical reality would say no; political expediency takes a softer approach with a massive push by some lawyers and those with a vested interest, operating outside of Australia, in developing the hydrocarbon fields. Co-operation on Illegal Fishing The Australian and Indonesian Governments are working closely to tackle the problem of illegal fishing in Australia s northern waters and, more broadly, in the region. Illegal fishing is highly damaging to Australia s marine environment, and also poses significant quarantine, immigration and security risks to Australia. The Governments of Australia and Indonesia are implementing a range of measures to tackle this problem at its source. Australia posted counsellors from the Department of Agriculture, Fisheries and Forestry, Customs and the Australian Federal Police in Jakarta to enhance collaboration with Indonesian Government officials and police. A public information campaign to discourage fishers and their communities from participating in illegal fishing Page 4 of 7
activity in Australian waters commenced formally on 22 September 2006, with outreach visits by Australian and Indonesian officials to Rote Island, West Timor, Papua Province, South and South East Sulawesi and East Java. The Indonesian Government is closely involved in planning and implementing the campaign. In 2007, for instance, Australia hosted on 20-21 March, the fifth annual meeting of the Working Group on Marine Affairs and Fisheries ahead of the 2007 Australia-Indonesia Ministerial Forum. Australia and Indonesia also co-hosted a regional ministerial meeting on 3-4 May 2007 to develop actions to combat illegal and unregulated fishing practices in the South-East Asian region. In addition to Australia and Indonesia, Ministers from eight other countries in the region participated in the meeting. In preparation for that meeting, senior officials from the region met in Jakarta on 29-30 November 2006 and in Canberra on 22-23 March 2007. The two countries are also undertaking a joint study of illegal fishing in the waters between our countries to better understand the nature and extent of the problem, including the causal drivers, its environmental, social and economic impacts, and the nature of the illegal fish trade in South-East Asia. Australian and Indonesian officials held the first meetings of a joint fisheries surveillance forum and a working group to manage shared red snapper stocks. AusAID has supported the development of alternative livelihoods for illegal fishermen in eastern Indonesia and is considering options for additional work. Through the 2006-07 Budget, the Australian Government committed an additional $389 million over four years to combat illegal fishing in our northern waters. The bulk of this funding was used to increase apprehensions and enforcement activity. Six illegal foreign fishing vessels and 61 fishermen were brought into Darwin for investigation during northern Australian maritime patrols in September 2007. The patrols were co-ordinated by Border Protection Command and involved officers from Defence, Customs and the Australian Fisheries Management Authority (AFMA). Five vessels were found fishing Australian waters north of Darwin near Evans Shoal. AFMA officers requested that the fresh trepang onboard be returned to the ocean. The 57 crew were handed over to Customs in Darwin for processing and transferred to the Department of Immigration and Citizenship. Another foreign fishing boat was spotted by a Customs Coastwatch aircraft east of Cape York. Australian Customs intercepted and boarded the shark boat approximately 60 nautical miles south of Thursday Island. In another twist, at 11.30am on 15 February 2009, it was alleged that the Territory Spirit was located at Lat. 9 40.6399 S., Lon. 130 26.3200 E (a very precise location, determined by satellite navigation, and allegedly in a grey legal zone). The position of the Australianregistered fishing boat was north of the water column boundary delimited in the yet to be ratified 1997 Treaty and south of the 1972 Treaty line the seabed boundary. Initial hearing of the case presented an indecisive comment and it is likely that the next step is a hearing in the Supreme Court. Page 5 of 7
Asylum Seekers and the Stepping Stones People-smuggling is not currently a criminal offence in Indonesia, the main transit point for asylum-seekers heading to Australia. The Indonesian Archipelago has become a stepping stone for asylum seekers who originate from as far afield as Afghanistan, Iraq and Sri Lanka. The seekers tend to head towards the northern Australian coastline and in particular to Ashmore Island (Reef Complex) and Christmas Island. During the weekend of 13 March 2010, a boat arrived 25 nautical miles northwest of Adele Island, which is about 100km off Western Australia s Kimberley coast, carrying 28 passengers and two crew members. It was the 37 th boat to arrive in the northern seas of Australia in the first ten weeks of 2010. On 16 March 2010, two questions were presented to the Prime Minister of Australia at the House of Representatives, Canberra when referring to the Government s budget estimate that only 200 unauthorised arrivals were expected to come to Australia by boat in the 2009/10 financial year. Given that there have been more than 3,100 unauthorised arrivals on 68 boats in the period to March 2010, how many unauthorised arrivals does the Government now anticipate will come to Australia by boat this financial year; and, what will be the additional cost to accommodate those arrivals? The Prime Minister replied that global security circumstances constantly change, as they did for previous governments, as they will do for this government and as they will do into the future as well. Therefore, it is important to respond appropriately to the practical circumstances which present themselves and the Government will continue to do so. On 17 March 2010, the Anti-People Smuggling and other Measures Bill, 2010 was read for a second time in Canberra. In excess of $410 million is allocated annually to combat people smuggling. This piece of legislation, when enacted and implemented, will ensure that law enforcement agencies will make emergency authorisations for the use of surveillance devices for the new aggravated people-smuggling offence. The Government infers that it maintains a tough stance on people smugglers and a responsible approach to genuine asylum seekers, consistent with its international obligations, even with its porous maritime boundaries in the Arafura and Timor Seas. Conclusion The Australian Government has maintained, with firm conviction, its position that the critical boundary between Australia and Indonesia should reflect the extent of Australia's natural continental shelf. Australia has worked closely with the East Timorese people and the UN in support of that country s transition to independence in 2002 and in the following years, especially in the response to the breakdown in law and order there in April 2006 and early- 2007. Australia remains at the forefront of international efforts to provide humanitarian assistance to East Timor and even advocated an expanded UN mission in the country to address East Timor immediate and long-term assistance and development needs. Thus, any suggestions that Australia has robbed East Timor of its oil revenue and been unfair in the negotiations of at least three agreements are nothing short of mischievous and opportunistic. Such suggestions are not acting in the best interest of the East Timorese people. Page 6 of 7
There is legal principle involved, which includes sovereign rights to place, space and resources and the nation s birthright should not be sold or given away. The most important factor is to ensure that any wealth accrued from the development of the marine biotic and mineral resources of the Timor Sea and adjacent waters will be directed towards enhancing the quality of life of the East Timorese and people of the neighbouring islands. Under the new agreements, Australia will continue to exercise continental shelf jurisdiction outside the JPDA and south of the 1972 Australia-Indonesia seabed boundary. East Timor will be able to exercise fisheries jurisdiction within the JPDA. A Maritime Commission will also be established to enable high-level dialogue on a range of important issues facing Australia and East Timor in the Timor Sea, including the management of security threats to offshore platforms and co-operation in managing fisheries resources. About the Author - Dr Vivian Louis Forbes is Adjunct Associate Professor (Earth and Environment) and Map Curator at the University of Western Australia. He is Treasurer of the Indian Ocean Research Group and has presented and published widely on maritime boundary issues and the management of marine resources. Any opinions or views expressed in this paper are those of the individual author, unless stated to be those of Future Directions International. Published by Future Directions International Pty Ltd. Desborough House, Suite 2, 1161 Hay Street, West Perth WA 6005 Australia. Tel: +61 8 9486 1046 Fax: +61 8 9486 4000 E-mail: lluke@futuredirections.org.au Web: www.futuredirections.org.au Page 7 of 7