De como a Austrália quer o petróleo de Timor-Leste

By Sarita Ryan According to Alexander Downer, former Australian Foreign Minister and subsequent board advisor to Woodside Petroleum, a country’s reputation is on the line. Downer claims that Timor-Leste’s appeal to terminate a key treaty with Australia in the Permanent Court of Arbitration reveals the tiny nation to be an unruly negotiator: ‘This is exactly why developed countries are reluctant to invest in developing countries. The sovereign risk is too high. An agreement, a law, a treaty is only okay when it suits the government…East Timor will win a reputation for being unreliable with no leverage to gain extra revenue from its reckless policy. As a person who did so much to get East Timorese their independence, that makes me sad.’ Recent proceedings have suggested that it might be Australia, rather than Timor-Leste, that is currently most at risk of gaining a bad reputation. When Sir Eli Lauterpacht, Timor-Leste’s leading counsel at the International Court of Justice, dubbed ASIO’s confiscation of evidence ‘improper and inexplicable’, Australia’s legal team responded to the assertions as ‘wounding’. Unfortunately for Australia, hurt feelings didn’t translate into a legal high ground in the ICJ, and it’s possible there are more sad faces to come; the ANU’s Donald Anton notes that if Timor-Leste’s allegations prove true, and Australia is found to have gained an unfair advantage in treaty negotiations through spying on Timor-Leste, Australia may earn the dubious distinction of being the first known state to have a treaty declared invalid on account of fraud (under Article 49 of the Vienna Convention on the Law of Treaties). Australia may well be losing the image game in its dealings with Timor-Leste. For decades, Australia has sought to carefully manage the conflicting positions of its desire for resource control in the Timor Sea and its image as a nation aligned with the moral principles of sovereignty and self-determination. It is now looking increasingly like Australia may not be able to have it both ways. Contrary to Downer’s claim, the arbitration case concerns more than the gain of ‘extra revenue’ in Timor-Leste. Certainly, this is a case about oil and espionage, fair resource distribution and good faith in agreements between nations. However, the drama surrounding the spying scandal is something of the tip of an older issue: Timor-Leste’s ongoing struggle to become an independent, sovereign state, complete with maritime boundaries, and Australia’s fraught position in this process. La’o Hamutuk, a prominent Timorese civil society organisation, has held several briefings for local and Australian journalists over the past few months to clarify a significant degree of confusion surrounding the case, including an often repeated claim that Timor-Leste’s arbitration case is seeking to redraw Australian/Timorese maritime borders. The organisation stressed that permanent maritime boundaries have never been set between Australia and Timor-Leste, rather, previous agreements have related to the division of resources in the Timor Sea. In taking the present case to the Permanent Court of Arbitration, Timor-Leste is seeking not only a re-division of oil and gas reserves in the Timor Sea, but the establishment of maritime boundaries in accordance with international law, a persistent issue since the beginning of Australian/Timorese resource negotiations. As Juvinal Dias, a researcher at La’o Hamutuk, stressed, “(the arbitration case) is not just about oil. It’s about sovereignty… This struggle is like the struggle for independence.” The story of Australian and Timorese oil and gas negotiations has been well documented,but is necessary to revisit in order to chart Australia’s long-term strategy in the Timor Sea. Discovered by Woodside Petroleum in the early 1970s, the untapped resources in the Greater Sunrise field, worth an estimated $40 billion, proved highly influential on Australia’s position regarding an independent Timor-Leste. In 1974, reflecting global trends in maritime agreements, Portuguese Timor advocated for resource sharing along a median line between the two countries, under which Australia would have received little or nil of the resources. On the contrary, precedent suggested that Indonesia would be far more amenable to Australia claiming a significant proportion; Indonesia and Australia had previously negotiated maritime boundaries based on the outdated ‘continental shelf’ principle, resulting in a deal that was referred to in Indonesia as ‘Australia taking us to the cleaners’. The following diplomatic cable, from the year prior to the collapse of Portuguese colonial rule and Indonesia’s subsequent invasion of Timor-Leste, reveals the extent to which resources were at the forefront of Australian concerns, coupled with a need to maintain an image of impartiality: ‘The Indonesians would probably be prepared to accept the same compromise as they did in the negotiations already completed on the seabed boundary between our two countries. Such a compromise would be more acceptable to us than the present Portuguese position. For precisely this reason however, we should be careful not to be seen as pushing for self-government or independence for Portuguese Timor or for it to become part of Indonesia, as this would probably be interpreted as evidence of our self-interest in the seabed boundary dispute rather than a genuine concern for the future of Portuguese Timor.’ In 1975, Australia chose to adopt a ‘realist’ rather than ‘idealist’ position on Timorese self-determination, which was argued to provide not just greater regional stability, but greater possibilities for resource access. This famous letter from Richard Woolcott, Australian Ambassador to Indonesia in 1975, provides the background of Australia’s tacit approval of the Indonesian annexation of Timor-Leste: ‘It would seem to me that (the Australian) Department (of Minerals and Energy) might well have an interest in closing the present gap in the agreed sea border and that this could be much more readily negotiated with Indonesia…than with Portugal or independent Portuguese Timor…I know I am recommending a pragmatic rather than a principled stand (regarding Indonesian annexation) but this is what national interest and foreign policy is all about.’ This ‘pragmatic’ position proved highly profitable for Australia. Following Indonesia’s 1975 invasion of Timor-Leste, Australia and Indonesia signed the Timor Gap Treaty (1989). By this stage, the 1982 UN Convention on the Law of the Sea (UNCLOS) had come into effect, establishing the median line principle as the basis for setting maritime jurisdictions between countries less than 400 nautical miles apart. However, in a highly favourable deal to Australia, the Timor Gap Treaty divided the resources between the 1972 boundary and the median line equally. The treaty proved extremely profitable, with Australia netting more than $2 billion in government taxes from the Laminaria-Corallina fields alone. These fields are now largely depleted.