Helen Hill – On Wednesday in Brisbane, East Timorese and Australian negotiators will again meet to debate rights to the taxation revenues in the Timor Sea.
To most Timorese, this is about determining permanent maritime boundaries with Australia, which they never had and which they regard as their right and part of self-determination.
To the Australian negotiators however, its about creating a legal and financial framework to enable oil and gas investors to begin extracting the hydrocarbons below the sea, and finding a market as soon as possible.
And the vehicle they have chosen to do this is the Timor Sea Treaty, based largely on one negotiated by Gareth Evans and Ali Alatas of Indonesia back in 1989!
Australia admitted what a bad deal it had given the Indonesian's when it gave the Timorese 90% of royalties from the joint development area, in comparison to the Indonesians 50%. Alexander Downer always describes this as 'very generous', but fails to mention that the 90:10 split only operates in one part of the area of overlapping claims, and that the most lucrative oil fields are outside it.
The Greater Sunrise Unitization Agreement was produced by the Australians and attached to the main Timor Sea Treaty for signature by the Timor's Prime Minister Mari Alkatiri at independence in May 2002. It allocates Australia 82% of the revenue from one of the biggest oilfields while East Timor, far closer to Greater Sunrise, gets only 18%. This agreement has still not been ratified by the Timorese Parliament as public opinion in Timor regards it as inequitable.
The Timor Sea Treaty does not prejudice the negotiation of permanent maritime boundaries, and would cease once such boundaries were determined.
Australia, however, wishes to prolong the life of the Treaty, at least until all oil and gas is gone.
After negotiations began, it soon became clear that while Timor-Leste was thinking of 3-5 years as the time by which it should aim to have a permanent maritime boundary with Australia, the Australian government was attempting to put it off for 100 years.
Timor's leaders are now in a difficult position as they need to maintain good relations with the Australian government to give confidence to the companies to invest. They have also been devising 'state of the art' petroleum legislation for fields in their undisputed waters with the assistance of Norway. But they have no way of appealing to the international community for a legal opinion as Australia withdrew itself from the jurisdiction of both the World Court and International Tribunal on the Law of the Sea just before Timor became independent.
However parts of the international community have come to their aid; US Congress members wrote to John Howard and Alexander Downer and the French newspaper Le Monde, editorialised on the case. In Australia, members of churches and humanitarian organisations wrote to their members of Parliament calling for a solution in keeping with international law.
But the response from Downer has been extraordinary, rather than answering his critics with careful argument he has tried to sow confusion between the actual justice of the case and the motivation of people for taking it up.
No one is saying Australia should give away its territory to Timor because it is a poor country, yet he tries to portray his critics as saying just this. When Channel 7's David Koch refused to fall for this one the result was quite comic.
As the two governments were so far apart in their negotiating positions both sides took the view that a 'Creative solution' was necessary. This is one based on not on international law but presumably negotiating prowess and the relative strength of the two countries. It would require the Timorese to postpone their aspirations for permanent maritime boundaries in exchange for some greater percentage of revenues.
One suggestion has been to give Timor a much greater percentage of Greater Sunrise in exchange for postponing their boundary claims. If the figure of 3.9 billion extra quoted by Downer following the last negotiations is accepted by the Timorese, the percentage will only have been raised from 18 to around 50. Timor will have a difficult decision to make, as they believe they could well be entitled to nearly 100 percent under international law.
We live in a world where small countries always lose out to large countries. Whatever the outcome in Brisbane it will not be lost on the other small countries in the region.