Nigel Wilson – Australia is being painted as a bully and an ogre for refusing to accept an East Timor argument that a maritime boundary should be negotiated that gives East Timor control of potentially billions of dollars in oil and gas revenues.
After all, it's the land of plenty pitted against the newly formed East Timor, the world's youngest nation, a country desperately in need of cash.
The population of fewer than 1 million relies almost entirely on foreign aid and the UN peacekeeping force is scheduled to leave the country mid-2005, a time frame that almost certainly means the executive and judicial arms of government will not be fully effective.
But when $US30 billion ($40 billion) in revenues is up for grabs, emotional arguments tend to lose traction against the letter of the law. This remains the case even when an institution as powerful as the US Congress looks to apply moral pressure.
Last month 53 members of the House of Representatives sent a letter to the Australian Government urging it to move fairly and expeditiously in the boundary negotiations. Nevertheless, in recent weeks the Howard Government has firmly maintained its position that the critical boundary between the two countries should reflect the extent of Australia's continental shelf.
East Timor, like Indonesia before it, is calling for a line to be agreed that is halfway between the two countries (the median line). Of course, both sides stand to forsake billions in oil revenue if they accede to the other's claim.
As official talks on the boundary began in Dili yesterday Gillian Triggs, director of the University of Melbourne's Institute for Comparative and International Law, said the Howard Government's case was strong and maintained the arguments put up by East Timor contained a significant number of myths.
Triggs says international tribunals have found that it is not the job of international law to "refashion nature". Nor does equity necessarily require equality, she adds.
Triggs is also critical of Peter Galbraith, the Minister for the Timor Sea in the UN Transitional Administration for East Timor, which guided the new country to independence in May 2002.
Galbraith, son of famed international economic theorist J. K. Galbraith and a prominent internationalist in his own right with experience in Bosnia and Iraq, has been trenchant in his view that Australia is obliged by international law to accept a maritime boundary that runs along the median line between the two countries.
He was the intellectual backbone behind Mari Alkatiri, now East Timor's Prime Minister, in negotiations before independence that led to an agreement that East Timor would have 90 per cent of the revenues from a so-called joint petroleum development area in the Timor Sea northwest of Darwin. He is also involved with the East Timorese boundary negotiating team.
Triggs says Galbraith told the East Timorese what they wanted to hear but adds he is on thin ice in citing international legal authorities to back the claim for a median boundary. "International law does not require a median line where states do not have a continental shelf in common. As a matter of geology, Australia is on a continental shelf; East Timor is not," she says.
A variety of non-government organisations in Australia are backing the East Timorese, arguing that as one of the richest countries in the world Australia should not be greedy in depriving one of the poorest countries from access to a stable medium-term revenue base.
Mark Zirnsak, social justice spokesman for the Victorian and Tasmanian Uniting Church, says East Timor should have sovereignty over all the oil and natural gas deposits it has legal claim to and which are closer to East Timor than Australia. "It is in Australia's national interest that East Timor be stable and prosperous, and the revenues from the oil and gas deposits are likely to be of significant assistance to achieving that outcome," he says.
Alkatiri has accused Canberra of showing bad faith over the issue and last week indicated he may call on the US to intervene in the dispute.
"East Timor is one of the poorest countries in the world. Australia is one of the richest," Alkatiri says.
Behind the emotion there is a long history that begins before commercial oil and gas was discovered in Australia and with Indonesia just emerging from post-war colonialism, Papua New Guinea still under benign rule from Canberra and Timor being governed from Lisbon.
In 1953 Australia declared its maritime boundary to be the continental shelf. An accepted international move at the time, it caused little argument except where it ran close to other countries Indonesia, Timor and PNG.
Shortly after its 1975 East Timor invasion, Indonesia weighed into the boundary debate, deciding a border set equidistant from East Timor and Australia would best suit its interests.
It was at that time the oil and gas search in Australia was booming following discoveries of the large reservoirs off the North West Shelf which form the basis of the nation's biggest resource development and the Jabiru oilfield in the Timor Sea that ultimately produced more than 100 million barrels.
The scope of these finds made it imperative there be no doubt about the legal and fiscal framework under which exploration and development could take place in the waters to the north of Australia.
Thirteen years of negotiation followed, leading in 1989 to Indonesian foreign minister Ali Alatas and his Australian counterpart, Labor's Gareth Evans, signing the Timor Gap Treaty, memorably in an aircraft flying over the area that had been in dispute. The agreement provided for joint administration and splitting revenues 50:50 and was hailed as a significant step forward in relations between the two countries.
Yet there was a dissident voice. A US-based company, PetroTimor, argued that before the Indonesian invasion it had secured licences from the Portuguese administration in 1974 giving it rights over oil and gas exploration in the Timor Sea. PetroTimor continues to assert these rights today. Only last month it filed a suit under racketeering legislation in the US alleging another oil company paid $US2 million to a senior East Timorese politician to maintain its interest in the Timor Sea oil fields.
In reality, the Timor Sea has proved a disappointment in terms of its potential, with a relatively small number of reservoirs being discovered and some of those, including the Greater Sunrise reservoir, being technically challenging to exploit compared with the North West Shelf reservoirs.
But UN-backed estimates suggest that up to $US30 billion in revenues could be involved during the next 30 years.
When Australia led the international fight to halt the ravages of Indonesian-backed militia in East Timor in 1999, it is safe to say there was little thought given to the implications of the action for the Timor Sea Treaty.
Since his country's independence, Alkatiri has not been shy about accusing Australia of bullying East Timor and appears to have a poor opinion of Foreign Minister Alexander Downer and his handling of the petroleum issue.
He has indicated East Timor is in no hurry to ratify an agreement, already endorsed by the Australian parliament, that provides the legal and fiscal framework for a development of the Greater Sunrise reservoir by a joint venture led by Australia's second largest resources company, Woodside Petroleum.
Triggs says it was strategically unwise for Australia to have ratified the Timor Sea Treaty in 2002 without ensuring the arrangement for Greater Sunrise was in force. "While Australia has abundant natural resources, international tribunals have found that it is not the job of international law to refashion nature," she says. "It will be for Australia and East Timor to resolve their differences on a permanent seabed boundary both in good faith and with a clear understanding of the international rule of law."
As the boundary talks began in Dili yesterday, the definition of good faith seemed to depend on which side of the moral debate was taken. Publicly at least, international law was very much in the back seat.
[Nigel Wilson is The Australian's national energy writer.]