Between 28 August and 1 September 2017, another round of maritime boundary negotiations between Timor-Leste and Australia took place with the Conciliation Commission, this time in Copenhagen. This Conciliation Commission was established in June 2016 after Timor-Leste gave formal notice to Australia in the Permanent Court of Arbitration in April 2016.
Although these meetings in Copenhagen and elsewhere remain confidential, the Permanent Court of Arbitration shared information about the process in a 1 September press release announcing that the two nations have reached agreement about the central elements of delimiting their maritime boundary in the Timor Sea.
This agreement package not only discusses maritime boundaries, but also “addresses the legal status of the Greater Sunrise gas field, the establishment of a Special Regime for Greater Sunrise, a pathway to the development of the resource, and the sharing of the resulting revenue.” To explain, the legal status of the Greater Sunrise gas field changed after Australia and Timor-Leste, together with the Conciliation Commission, issued a Joint Statement on 9 January 2017 to terminate the CMATS Treaty (Treaty on Certain Maritime Arrangements in the Timor Sea). This week’s press release also says that the two delegations will meet again privately with the Conciliation Commission to finalize this agreement by October 2017.
Although no details are available about what the two parties have agreed on, some people, including state officials, politicians and diplomats, have begun celebrating its result as a victory for Timor-Leste, which is dominating social media in Timor-Leste. Radio Televizaun Timor-Leste (RTTL) invited La’o Hamutuk, as a non-governmental organization that has long followed the process of defining maritime boundaries, to participate in their program 7 Minuto in the Saturday evening news to give our point of view on the results of the recent Copenhagen meeting.
Although La’o Hamutuk appreciates the efforts of the two nations to take a new step in talking about their maritime boundary dispute, we think it is too early to consider this agreement a victory that reaffirms Timor-Leste’s sovereignty. We don’t yet know the details of what they have agreed, and whether or not it follows the UN Convention on the Law of the Sea (UNCLOS) principle of the Median Line, which is the goal of the Timor-Leste people’s struggle.
La’o Hamutuk considers this celebration like the ‘celebration’ in 2005, when Timor-Leste and Australia agreed on the CMATS Treaty. On 9 December 2005, the Government put out a press release to celebrate that agreement, declaring that ‘This is a good agreement for Timor-Leste but it is also a good agreement for Australia’ which ‘also opens the way for the construction of a pipeline between Greater Sunrise and Timor-Leste and for the installation of a refining facility that will be the starting of petroleum activities on Timorese soil.’
Sadly, although the celebration had begun, in the end that ‘agreement’ was not considered a victory for Timor-Leste. This is because the CMATS Treaty blocked Timor-Leste from speaking about its sovereign rights while Greater Sunrise was in production, and continued to recognize Australia’s rights to sea areas which properly belong to Timor-Leste under principles of international law. Eventually, Timor-Leste decided to terminate the CMATS Treaty last January. In 2004, La’o Hamutuk had suggested to leave Greater Sunrise for the next generation, to be developed after the two nations had established a permanent maritime boundary.
Coming back to the new Copenhagen agreement – Although the substance of the agreement remains confidential, we hope that Timor-Leste chose to achieve its full sovereign rights, and not to repeat past errors which gave Australia permission to take our money and occupy Timor-Leste’s territory. It’s no secret that Timor-Leste has always abandoned its commitment to a permanent maritime boundary when it comes to the negotiating table.
When the Timor Sea Treaty was signed in 2002, Timor-Leste had to surrender 10% of the petroleum revenues from the Joint Petroleum Development Area (JPDA) to Australia because the new nation needed income rapidly to rebuild while emerging from the massive destruction by the Indonesian military and their militias after the 1999 referendum. And in 2005, Timor-Leste surrendered its chance to speak out when the Government prioritized getting 50% of Sunrise revenues. Today, Timor-Leste’s financial situation is different from 15 years ago, but what will happen next month? Will Timor-Leste and Australia have a permanent maritime boundary, or will they make a new arrangement to replace the terminated CMATS Treaty?
There are two roads open to these two nations, depending on what proposals are brought to the negotiating table. The better road would be for the two countries to establish a permanent and fair maritime boundary. Australia must come to the negotiating table with good faith – that they will use UNCLOS as the basis for defining the maritime boundary. Australia is politically and economically powerful in this region, and it is easy for them to impose their interests in bilateral negotiations, rather than accepting those of their negotiating counterpart.
In addition to good faith from Australia, Timor-Leste also should have a strong position for the long term. Timor-Leste has already spent money and plans to spend a lot more for the Tasi Mane Project on its south coast, and wants to bring the Sunrise gas pipeline to that coast. But Timor-Leste should reduce its obsession with developing oil fields in the Timor Sea, and not include it in the package of proposals for the negotiation.
If Timor-Leste includes the status of the Greater Sunrise field in the negotiations, even if the share of revenues to Timor-Leste is more than the 50-50 share under CMATS, this continues to give Australia space to maintain its occupation of Timor-Leste’s territory while Sunrise is in production. La’o Hamutuk believes that if the new agreement really follows the UNCLOS median line principle, Dili alone may be able to decide about Greater Sunrise development, without consulting with Canberra.
However, if Timor-Leste only wins the Sunrise pipeline and a larger share of revenues relative to Australia, but we do not get a permanent maritime boundary according to UNCLOS, the result of these negotiations can be considered as only an effort to revoke the CMATS treaty, rather than a victory in the struggle for sovereignty.