Abroad Thoughts from Home



Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada


The Shade of Colonialism II:
Don't Tread on Me: The Realpolitik of Anachronistic Assumptions of Superiority

Ian Townsend-Gault

This is the second installment in a series of articles touching on post-colonial themes.

Of course, "Don't Tread on Me" was the warning written on one of the United States' very first flags, the Gadsden Flag (1775), along with a picture of a menacing rattlesnake to drive the point home to the British and other imperially minded adventurers. [1]


Gadsden Flag, 1775

In November/December 2013, three major foreign policy issues arose with some force to challenge the policy direction and resolve of the comparatively new Liberal (meaning conservative) government of Australian Prime Minister Tony Abbott. I should add that there was no shortage of challenges on the domestic front also, which perhaps indicated that the government had a lot to learn, but they are not relevant in the current context. They do, however, underscore the need for what has been called the "discipline of power". Making up and discarding policies seemingly off the hoof and claiming the right to do so merely because a lot of people have voted for you really won't do. The Abbott government is, of course, by no means the first to have two have realised this, and will not by any means be the last.

These three major foreign policy challenges were as follows. First, allegations, courtesy of Edward Snowden, that Australia's intelligence services bugged the mobile phones of the President of Indonesia, his wife, and members of his inner circle. Second, allegations that the same service had also bugged the Cabinet officers of the government of Timor-Leste at a time when it was negotiating a treaty with Australia which would redefine the revenue sharing from a major gas field which straddles the boundary between the Australian continental shelf and the joint development area established by the two countries in 2002, and this amounted to bad faith justifying the Timorese in applying to the Permanent Court of International Arbitration for that treaty to be nullified. Third, Australia joined the chorus of denunciation of China's unilateral declaration of an air defence zone around islands disputed with Japan in the East China Sea. Quite enough to be going on with, one might think.

The allegations of hacking into the phones of the Indonesian leadership will be seen by many in the context of the service complaints from European leaders to Washington that this has been done to them, so the phenomenon is by no means localised. The bad faith allegation, also linked to allegations of bugging, concerns Australia and Timor Leste and no other country. And Australia is in very good company when it comes to objecting to the declaration of the air defence zone around the Senkaku/islands. The first response of the United States, very shortly after Beijing establish the zone was to send two B-52 bombers through it without notification.

All three foreign policy challenges raise important issues of international law and policy. It is convenient to examine them in the Australian context because as of December 2013 they are very much on Canberra's agenda. Having said this, however, we should bear in mind that the issues can arise and have arisen for other countries also, and there is no reason to suppose that they will not continue to do so in the future.

'Listening In' to the Indonesian Leadership
It is something of a truism to say that "all states collect intelligence". This has been the practice since time immemorial, and there is absolutely no reason to suppose that it will end. Indeed, one might ask: why should it? If, as this writer firmly believes, citizens should not take the pronouncements of the government's purely on trust, why would the leaders of other countries do so? In this context, practices of undeniably secretive regimes such as that of North Korea and (arguably until recently) Burma are trotted out as justification for the maintenance of a healthy programme of what amounts to spying. Precisely the same arguments were used during the Cold War: from the Western perspective, the Soviet bloc was not only unfriendly, but posed a positive threat. But today? It seems to this writer that the history of the first two decades of the present century show that comparatively few governments can be trusted. The best examples here are surely the justifications set out by members of the "coalition of the willing" for the invasion of Iraq. Before the onslaught, there were indeed those who stated quite unequivocally that the factual basis on which the leaders of the coalition where proceeding was quite erroneous (and this should come as a corrective to those who claim that it is only with the benefit of hindsight that we know that the Iraq fiasco was doomed from the beginning - people who truly knew Iraq warned of this well in advance). We also know, thanks to Bradley Manning, that the coalition governments sought to mislead their respective publics on matters such as the extent of civilian deaths resulting from the invasion and its aftermath. As we contemplate what can only be called a calculated campaign of deceit, is it any wonder that scepticism and doubt stalks the land, affecting governments and private citizens alike?

Many will see the complaints from the government of Indonesia as part and parcel of the outrage manifested by European leaders, Chancellor Merkel to the fore, when again thanks to Edward Snowden, it became clear that certain intelligence agencies were prepared to go to some lengths to gather intelligence, even regarding ostensible NATO partners and allies. The Indonesian response to the listening in on mobile phone conversations by the president and his entourage is slightly different. For one thing, the direct accusation, and the language in which it was couched, are not only un-Indonesian, they are un-Asian. They are in sharp contrast to the discretion and bleakness with which utterances from Jakarta are apt to be couched. From this we may conclude that there was genuine anger on the part of the president and his advisers, possibly coupled with a degree of resentment at what might have been seen as high-handed tactics on the part of the Australian intelligence services.

It seemed to me when the crisis broke that this resentment, building up over the decades since independence, was possibly the key to understanding the Indonesian response to the information Snowden has shared with us. This was confirmed by a much more knowledgeable authority, a former Australian Ambassador to China, who castigated the government in no uncertain terms in a letter published in The Australian, the country's leading national newspaper. The time had come, said the writer, to abandon the condescending approach which had marked Australia's attitudes not only to Indonesia, but other south-east Asian countries as well. Reading this letter led me to think of one striking example of Australia-Indonesia interrelations which puzzles many of us working on ocean law and policy.

In 1972, Australia and Indonesia concluded a series of continental shelf boundary agreements in the Timor and Arafura seas. There was a "gap" in the network of boundaries offshore the then Portuguese colony of East Timor. The main issue has nothing to do with the reluctance or refusal of Portugal to negotiate an offshore boundary with Australia, but rather the criterion selected for determining the jurisdictional limits between the parties to the treaties. Put simply, Australia claimed - quite rightly - that the greater part of the offshore area between it and those parts of the archipelago opposite to its northern coast was the natural propagation of its landmass. This terminated in the Timor Trough, a large declivity in the seabed very much closer to the archipelago than the median line, that is, one which is equidistant from the respective coasts. In other words, natural propagation would give Australia the lion's share of the continental shelf, while the median line would have divided the area equally.

Australia's case was founded not only on the basic philosophy behind the doctrine of the continental shelf as a rule of international law - since the shelf is indeed the natural propagation of the landmass: "land covered by water" so the theory runs - approximate coastal state is justified in taking jurisdiction over it for the purpose of the exploration for and expectation of natural resources of the seabed and subsoil. This served as a justification of sorts for coastal states helping themselves to resources which had hitherto been regarded as the property of all states, because state jurisdiction of the time was limited to the territorial sea of 3 nautical miles. In the welter of claims that followed the American Proclamation of 1945, natural prolongation came in and out of focus as a justification. Most significantly, however, it was ignored by Norway and the United Kingdom in the world's first unmistakable continental shelf boundary agreement of 1965. The United Kingdom might have insisted that the Norwegian Trench - a declivity in the seabed off the coast of Norway not unlike the Timor Trough - marked the edge of the natural propagation of the Norwegian landmass, and indeed I have it from a member of the Norwegian delegation which negotiated the boundary that this was the argument that London was expected to advance. But it didn't. The United Kingdom was quite happy to establish a median line, ignoring the Trench. This meant that what is possibly the most important Maritime boundary in the North Sea was concluded after two days of discussions.

So far so good, but matters were subsequently complicated by the decision of the International Court of Justice in the North Sea Continental Shelf Cases of 1969 between Germany and Denmark, and Germany and the Netherlands. Since there was no treaty in force between the parties concerning the appropriate criteria for delimitation, the Court was forced to consider emerging (and somewhat exiguous) state practice. In the course of its judgement, it mentioned "natural propagation" as a "fact" which might be taken into account during negotiations where no treaty norms are available as guidance. Australia seized on this in the course of its negotiations with Jakarta with respect to the Arafura and Timor Sea boundaries. The question which has puzzled many of us is this: why did Indonesia agree to the Australian position, one which was so clearly contrary to its interests?

Indonesian diplomats, especially those who were in harness at the time, had been somewhat cagey as regards this crucial question. The former foreign minister and law professor Mochtar Kusadmadja repeated time and again that "Australia took us to the cleaners." But how and why? Why did Indonesia agree to be "taken to the cleaners"? There was nothing in the way of coercion or even the hint thereof. Nor was resource scarcity reason for the precipitous acquiescence to the Australian proposals. So why?

One answer, and I am sure most repugnant to Indonesians of the older generation and certainly their younger counterparts, might be that Jakarta felt more or less obliged to fall in with Canberra's wishes, that there was a degree of deference on the part of the developing country to the developed. If this is so, and I am putting it forward merely as a hypothesis, one can well understand why Indonesian diplomats and law the sea experts are less than keen to unpick the history of those negotiations and the forces that led Indonesia to sign and then ratify the treaties. By today's standards, we would have no hesitation in saying that these boundaries are "inequitable", as that phrase is used by the International Court, and indeed in the practice of states. Viewed on a map, the boundary lines simply look wrong.

If we returned to the eavesdropping scandal, the conclusion reached by the retired ambassador in his letter to The Australian is that Canberra's approach was yet another fruit of this long-standing condescending attitude, quite out of place, he argues, given Indonesia's sturdy adherence to democracy in the post - Suharto era, as well as its advancements in economic stability and civil society. Once Suharto had been ousted, there were many predictions of instability, tensions of various sorts, and the like. On the whole, these prognostications have been shown to be erroneous. The country has had free and fair elections for the presidency and National Assembly. Treating it as a banana republic is therefore wholly inappropriate, and indeed insulting.

Jakarta's response to the information from Snowden was to place all aspects of Australia-Indonesia co-operation hold. This included cooperating with a view to stamping out people smuggling, an issue of extraordinary sensitivity in domestic Australian politics, and one to which the right-of-centre government of Tony Abbott is committed to combat. The Prime Minister did however take steps to heal the breach, and while it seems clear that a formal apology was not forthcoming, Indonesia appears to have accepted the olive branch so long as there is a commitment to cease and desist from bugging the phones of the President, his wife and his immediate circle. This is not to say that Australia will cease collecting intelligence about Indonesia - that is normal practice and indeed common sense. But no more bugging of phones.

Perhaps the larger question is this: will the government in Canberra take the advice of the retired ambassador and rethink its approach to relations with Indonesia and indeed other Asian countries? Will it come to a realisation that its neighbour to the north is no longer an impoverished underdeveloped member of the Third World and while still facing challenges on many fronts, is deserving of respect and equal treatment? The days when Western resource companies could simply buy their way into countries such as Indonesia by greasing the right palms while nurturing innate feelings of superiority are surely numbered, if not gone for good.

The Bugging Allegation at the time of the 2004 Treaty Negotiation with Timor
The history here is somewhat convoluted, and some aspects of it are linked to the nature of Australia's relationship with its neighbours to the north as discussed in the previous section. It was pointed out there that there was a "gap" in the boundary line between Australia and the said northern neighbours offshore the then Portuguese colony of East Timor. On the whole, the Portuguese deserve very low marks as regards the way they treated their colonies. While colonialism as a project stands condemned in universal world opinion, some colonial powers did at least endeavour to encourage what they regarded as progress on the part of their subjects and territories. The British, for example, did their best to launch their colonies into independence with workable constitutional arrangements and the trappings of civil society. The Portuguese did not.

Part of the reason for this has to do with the history of the Iberian Peninsula from the interwar years until the mid-1970s. There has of late been an enormous focus on the Spanish Civil War of the 1930s and its aftermath, which saw the accession of the fascist government of General Francisco Franco. The war itself and its aftermath, both of which saw so many atrocities, and there is no doubt that the Franco regime was absolutely ruthless in suppressing dissent of any sort. Much less attention has been paid to what was happening in neighbouring Portugal. There, a former university professor by the name of Salazar assumed almost dictatorial powers but with a certain measure of support, in that it was thought that he would bring much-needed stability to a badly fractured society and faltering economy. The trouble was, of course, having achieved this, he did not follow the example of the Roman dictators of old and resign, but saw no reason why he should not remain in power, which he did until incapacitated by a stroke in 1968 (he died in 1970). He was succeeded by one Caetano, a legal scholar, who vowed to continue his predecessor's policies and methods.

Caetano was very anxious to retain control over Portugal's many colonies, but this required an enormous commitment of men and material on the part of the Portuguese Army who were battling with pro-independence insurgents in a number of territories. It was the growing realisation of the futility of this policy (not to mention the chorus of international disapproval) that led the army to overthrow Caetano in the "Carnation Revolution" of 1974. The fascist dictatorship in neighbouring Spain came to an abrupt halt upon the death of General Franco in 1975. The Caudillo, as he was called, was succeeded not by the next in line to the Spanish throne, but his son, the present king Juan Carlos. I have no difficulty in remembering confident predictions on all sides that the new king, still in his 20s, would continue the Franco line, having been schooled by the dictator for this purpose. But he did not. In the first free and fair election for decades, the Spanish elected a left of centre government. This provoked a small but significant attempted coup on the part of some army officers, but the king appeared on national television and sternly ordered his troops back to barracks forthwith, and to keep their noses out of the political agenda of the country. For this, he was at the time and has been since hailed as the saviour of Spanish democracy. It need hardly be said that the then nine members of the European Community (now the 28 member European Union) were extremely anxious to pull both Spain and Portugal away from dictatorship and into the fold of the democratic states of Western Europe. It should not be forgotten that the Cold War was in full swing at the time, with significant parts of Europe being little more than satellite states of the then Soviet Union. The Iberian dictatorships were a severe political embarrassment as well as an affront to regional human rights standards.

The collapse of fascism in Spain led to the downfall of Caetano, and the installation of democratic government in Portugal also. As with Spain, the Portuguese elected a left of centre government. This administration regarded colonialism with abhorrence, and its solution to the shame of being a colonial power was simply to withdraw from its subject territories and announce that they were henceforward independent. Portugal's largest colony had been Brazil, but they achieved independence in the 19th century.Now territories such as Angola, Mozambique and East Timor found themselves virtually on their own. All descended into differing degrees of chaos and what amounted to varying degrees of civil war.

For Indonesia, the unexpected and very precipitous departure of the Portuguese presented an opportunity to bring more of the archipelago under the control of Jakarta. The modern state of Indonesia emerged after the end of the Second World War. It had for long been a series of colonies of the Netherlands, the Dutch East Indies, and had not been a unified country before the colonial period. Nonetheless, those who sought to get rid of the Dutch did not seek a return to the status quo ante, but rather a unified "Westphalian" state. The independence seekers were led by the highly charismatic Sukarno, and Mohammed Hatta (Jakarta's airport is named after them). Their movement gathered steam in the years before 1939, marked by decisions such as adoption of Bahasa Indonesia as the state language once statehood had been achieved. There were hundreds of languages and dialects in the archipelago, but this, one of the simplest languages on the planet, largely invented, was to be a unifying factor, spoken by all.[2] Another, developed after independence, was the concept of the archipelagic state. This concept viewed the water between the islands of the archipelago as an integral part of state territory. It was to receive the seal of approval only with the signing of the United Nations Convention on the Law of the Sea in 1982. Once again, the goal was national unity - finding some way of linking the thousands of islands which the new state was comprised. Yet another was the adoption of the 5 - point state policy of Pancasila, the first tenet of which made reference to the supremacy of God, but without specifying which particular deity this was. Despite the fact that it is the world's largest "Muslim" state, with less than 10% of the population adhering to other religions, Indonesia remains officially secular unlike, say, neighbouring Malaysia and Brunei.

The Dutch East Indies were overrun by the Japanese during the 2nd World War, and as with Vietnam and Burma, the policies of eventual independence were made, but it became clear that full independence was not in contemplation. Again, as with Vietnam, liberation prompted a declaration of independence, but the Dutch, like the French in Indochina, sought to return, with an equal lack of success. The country at the time of independence was not quite as it appears today. For example, the colony of Irian Jaya, known today as West Papua, the western part of the island of New Guinea, became independent later than the rest, but was absorbed by the new state almost at once, and without the consultation of the people there. This in part explains the continuing move to try and dislodge Indonesia and for West Papua to take its place among the family of South Pacific countries like its immediate neighbour on the eastern portion of the island, Papua New Guinea.

Sukarno and his circle wanted all of the islands of the archipelago to form part of the new state. This was always extremely unlikely to happen as regards Papua New Guinea, a former British colony. But there was massive opposition to London's decision to include its colonies of Sabah and Sarawak on the north coast of the island of Borneo in the emerging state of Malaysia, which would also comprise the Malay states and Singapore, also British colonies. Jakarta also had its sights on the Sultanate of Brunei, a British protectorate. There was a serious attempt to force the issue by recourse to arms, but this failed.[3] This did not prevent Sukarno from launching an all-out attack on the legitimacy of Malaysia. This was part of the mind-set that caused Indonesia to consider its options once Portugal abandoned East Timor.


In This Issue (coming soon)

Brexit, and after
Ian Townsend-Gault

On Justice
C.G. Bateman







The Portuguese departure, followed as it was by some fairly serious infighting between the various factions in the former colony, gave Jakarta exactly the opening it sought. It mounted an invasion ostensibly to restore order, but in fact with the eventual aim of absorbing the territory, which it duly did. Although there are signs that there was, at the very least, American knowledge if not complicity in this move. However, no country recognised Indonesian sovereignty until Australia began negotiations for what was to become a joint development zone in the so-called Timor Gap in the late 1980s. The Timorese were not disposed to accept Indonesian intervention, but attempts to assert independence were dealt with by Indonesian military with a degree of brutality which shocked the world, and damaged Indonesia's international standing very considerably.[4]

The reason for the Gap is easily explained. It will be recalled from an earlier section of the paper that in the early 1970s, Australia and Indonesia commenced negotiations for continental shelf boundaries in the seabed between the archipelago and Northern Australia. The results, highly favourable to Australia, have already been described. By the late 1980s, however, Australian resource companies became increasingly keen to have access to the seabed and subsoil of the Gap, and urged Canberra to find some accommodation with Indonesia no matter what. For its part, Indonesia can hardly have been averse to the prospect of increased oil and gas revenues, but there was the added heady incentive of recognition of its sovereignty over East Timor.[5]

After negotiations, a treaty was duly signed in 1992 by foreign ministers Gareth Evans and Ali Alatas in a plane flying over the zone of cooperation itself. Portugal challenged the legality of this agreement before the International Court of Justice, and while Australia was bound to appear having submitted to the compulsory jurisdiction of the Court, Indonesia, which had not, refused to submit voluntarily to it on this occasion, as was its right, and so the case could not go forward. However, from the viewpoint of the two governments and their resource industries, the jurisdictional problems had been solved, and exploration and eventual production could get underway, which it duly did.

After the fall of the dictatorial and somewhat corrupt Suharto regime, Indonesia's new rulers decided that the East Timor issue should be settled one way or the other by means of a referendum of its inhabitants. There are some reports that elements in the Timorese leadership consider that some form of association with Indonesia would probably be in the territory's long-term interests, but too much blood had been spilled, and there was too much bad feeling on the part of the Timorese, and the result was a healthy vote for complete independence.[6]

This obviously brought the legality, or at least the future of the joint development zone into question. Australia indicated that its basic position had not changed: the median line between East Timor and Australia as the maritime boundary was a non-starter, and a series of negotiations on a revised joint development scheme took place. For many in Australia, the fact that the area to be jointly developed was north of the median line - the southern boundary of what some might have considered to be the offshore area of the new state, was reprehensible, and suggested that there had been recourse to what amounted to strong arm tactics on the part of Canberra's negotiators. This group remains vocal to this day, and seems to be strongly in support of Timor Leste's position in the current arbitration.

Their position is undermined somewhat by the fact that international jurisprudence and state practice regarding the median line as the presumed offshore boundary between states with opposite coastlines applies only where there is more or less equality of length. But where a state with a relatively short coastline, such as that of Timor-Leste day, confronts a much larger one, such as Northern Australia, then the line is shifted closer to former. This was the result in the continental shelf boundary case between Malta and Libya (line adjusted to the advantage of the latter), and with the equidistant boundary between Canada and the United States in the Gulf of Maine (once again, line adjusted to the advantage of the latter). These adjustments take place because it is considered inequitable for a small coastline to generate an offshore area equal to that of a much larger one - it looks wrong. It is, in the words of the International Court, disproportionate. To my mind, it is inconceivable that an international tribunal of any sort would have awarded East Timor a zone equal in size to that of Australia: it is virtually impossible for it to have been the median line.

Be all this as it may, the new joint development treaty provided for a 90:10 revenue split in favour of Timor-Leste. However, any hydrocarbon field that straddled the boundary of the zone so that it was partially within those limits and partially on the continental shelf of one party or the other would be subject to unitisation. This meant that the division of revenues from that field would be in accordance with the percentage thereof located within the zone and within the continental shelf of a party. The percentage in the zone would be subject to the 90:10 revenue split, but the percentage located on the shelf of a party would accrue wholly to it.

This is not in any way exceptional: unitisation of divided oilfields was developed by the oil industry in North American petroleum producing jurisdictions in the early decades of the last century. It has been used successfully in the offshore international context in the North Sea on a number of occasions. It seems to be a fair and equitable approach, and one, moreover, which guarantees optimum results, because the various interest holders cooperate fully in all matters pertaining to the exploitation of the field: they do not compete with each other in any way as regards production. The discovery of a very significant oil and gas field called Greater Sunrise, located partly with in the joint development zone and partly on the Australian shelf, seemed to trigger the unitisation provisions, but the Tories demanded a greater share of the field than 90% of the portion within the joint development zone. Australia decided to concede this point, and the result was a subsequent agreement, usually referred to as CMATS. Its most important provision was that there would be a 50:50 revenue split from the field. The current arbitration relates to the alleged conduct of Australia during the course of the negotiations for CMATS. The allegation is that the Australian intelligence service bugged the rooms where the Timorese negotiators and politicians were meeting to discuss their next moves. According to Timor-Leste, this amounts to bad faith on the part of Australia, and justifies the nullifying of CMATS.

All this is bad enough, but mere days before the Arbitration was due to begin, the offices of the (Australian) lawyer representing Timor Leste were raided by the Australia's security forces, and a key witness detained. Timor Leste applied to the International Court of Justice for provisional measures to declare an order as follows:

First, [t]hat the seizure by Australia of the documents and data violated (i) the sovereignty of Timor-Leste and (ii) its property and other rights under international law and any relevant domestic law; Second, [t]hat continuing detention by Australia of the documents and data violates (i) the sovereignty of Timor-Leste and (ii) its property and other rights under international law and any relevant domestic law; Third, [t]hat Australia must immediately return to the nominated representative of Timor-Leste any and all of the aforesaid documents and data, and destroy beyond recovery every copy of such documents and data that is in Australia's possession or control, and ensure the destruction of every such copy that Australia has directly or indirectly passed to a third person or third State;

Fourth, [t]hat Australia should afford satisfaction to Timor-Leste in respect of the above-mentioned violations of its rights under international law and any relevant domestic law, in the form of a formal apology as well as the costs incurred by Timor-Leste in preparing and presenting the present Application.[7]

On March 12 2014, the Court decided as follows:

Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded; Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court; Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor-Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.[8]

A partial victory for the applicant, then, but this was a request for provisional measures, not a full hearing of the case. Be this as it may, all this is unlikely to help relations between the two countries. There is an additional problem linked to the joint development area - Timor-Leste wants the gas from the Greater Sunrise field to be transported by pipeline to that country and processed there. Since Timor-Leste does not have a processing facility, one will have to be built. Not surprisingly, this trailing resource company Woodbridge is extremely reluctant to build an expensive pipeline (which will have to straddle the Timor Trough) as opposed to a pipeline to Northern Australia, or a mobile production facility such as the one Shell is preparing for operations of the north-west coast of the country. The mammoth hull - longer than the Empire State Building is high, weighing in at 600,000 tonnes, the largest floating structure in the world - was launched at the end of November 2013.

If Timor-Leste does not give way on this issue, and Woodbridge has indicated that it has no intention of doing so, then the development of this field may well be delayed indefinitely. All in all, it is very difficult to see too many benefits for Dili in pursuing the Arbitration and insisting on a pipeline to Timor-Leste. If CMATS disappears, then the unitisation provisions of the original joint development treaty apply, and this gives it less than 50% of the field revenues, as well as a less than happy neighbour to the south which is already a major contributor to the countries developmental coffers. There are of course powerful domestic political factors at work in all this, but this is precisely the sort of behaviour that resource companies and, indeed, the investment community in general particularly detests. Playing political games at the expense of the interests of companies on which you are going to have to rely is not the best way to build confidence in the quality of governance on offer.

While it is understandable that the leaders of Timor-Leste wish their country to witness this sort of economic prosperity which has come to Australian cities such as Darwin, this is probably not the means whereby this transformation will take place. In any case, Timor-Leste has an oil revenue fund of fifteen billion dollars. It receives considerable amounts in foreign aid. And yet, it is estimated that the poverty level since independence has risen from 36% to 49%. Why is this? News reports suggest that many Timorese attribute their problems to what they call KKN - corruption, cronyism and nepotism.[9] If this is so, then if one adds the various gambles that the government of Timor-Leste seems willing to take, the priorities of the leadership in Dili must surely be called into question.

Finally on this second issue, how is one to judge Australia's overall behaviour towards Timor-Leste? In a leading editorial, the (somewhat conservative) newspaper The Australian pointed out that it was Canberra's job first and foremost to safeguard the national interests of Australia. This did not mean that any conduct towards other states would be acceptable, but it was pointed out that Australia did indeed lead the force which intervened to prevent the pro - Jakarta militias from destroying the territory after the vote in favour of independence: it intervened militarily once again in two thousand and six when civil war seemed all too likely to break out, and that it is the leading aid donor to the country. But what of the fact that the joint development zone lies to the north of the median line between Timor-Leste and Australia?

A glance at a map suggests that the joint development area lies on what seems to be the offshore area of Timor-Leste. This, however, presupposes that the median line is indeed the appropriate Maritime boundary between them. Given the decision of the International Court in the Malta v. Libya case where the median line was adjusted in favour of the latter to take account of the great disparity in the length of the respective coasts of the parties, not to mention the adjustment of the equidistant line in the Gulf of Maine in favour of United States, for very much the same reason, an international tribunal would be very unlikely to come to this result. Just how far the boundary would be adjusted in Australia's favour is impossible to guess, but some adjustment would undoubtedly be effected.[10]

There is no doubt that the government in Canberra played hardball in its negotiations with Dili on offshore issues. This was surely its duty, and it should not be forgotten that Timor-Leste has not lacked for foreign expertise in these and many other matters.

China's Air Defence Zone
In November 2013, China established an "air defence zone" over and around a group of islands in the East China Sea also claimed by Japan (which effectively controls them). Known as the Senkaku group to the Japanese and the Diyaous to the Chinese, the islands are uninhabited, but are certainly not rocks which cannot sustain human life or an economic life of their own and therefore are, prima facie, entitled to an exclusive economic zone/continental shelf of two hundred nautical miles. As with many of the other island disputes in the Sea of Japan (Japan versus Korea), and the South China Sea (China/Taiwan versus Vietnam versus the Philippines versus Malaysia), this is the true significance of the dispute, though there are of course important issues of national amour propre at work here. Indeed, for significant numbers of people in the countries affected, this outweighs all other considerations.[11]

Does China have the right to do this? States exercise sovereignty over the airspace above their land territory and territorial sea (the 12 nautical mile limit). Overflight by foreign aircraft is a privilege, not a right: there is no aeronautical equivalent of the right of innocent passage available to vessels. States wishing to participate in the international air transportation system will routinely allow overflight, but always in accordance with air traffic control. It is by no means uncommon for the government to establish a prohibited zone for all types of aviation, such as in the vicinity of the White House, sensitive installations, and the like. The problem here, of course, is that sovereignty is in dispute. Countries contending for sovereignty over disputed islands (especially when they are uninhabited) can raise the temperature quite considerably more or less at a moment's notice, and often for domestic consumption (as with Timor-Leste and its dispute over the future of Greater Sunrise and its resources with Australia). Otherwise, at least so far as the outside observer is concerned, weeks or months may go by without any apparent change in the status quo.

It so happens that 2013 had seen repeated and often vociferous exchanges between China and Japan over these islands. Since they are under the administrative control of Japan, Tokyo has done all it can short of outright provocation to demonstrate this. The establishment of the Chinese zone can therefore be seen as a riposte to these efforts, something well short of any sort of intervention, but an effective flexing of the muscles by Beijing. Its requirements are being acceded to by at least some air carriers.

The purported zone was not established to keep planes at a distance, but rather to require airlines to file flight plans if is intended that a given one will enter it before the plane in question takes off. The Chinese Decree was roundly condemned by a number of governments, including Australia, and this in turn provoked a considerable amount of ire on the part of Beijing, which must surely have been expecting such a reaction. The American response was unmistakable and immediate: it flew to B-52 bombers through the zone without, of course, notifying the Chinese much less asking permission. South Korea followed suit. Some governments - not those of Australia and United States - have instructed their airlines to ignore the Decree, but it is thought that American carriers are complying in the interests of passenger safety. After all, no one wants to see a jetliner menaced by fighter planes, especially those on board the civilian aircraft.

The zone, of course, has nothing to do with defence, and everything to do with China's determination to assert its widening authority in the region. One of the reasons that countries not party to the dispute resent the Chinese move to the extent that they do is because it virtually forces them to take sides. By complying with the Chinese decree, there is an implicit acceptance of China's right to establish the zone in the first place, and hence its sovereignty over the islands (though this would not apply if a non-governmental civil airline decided voluntarily to comply: it is also open to countries to make it clear that nothing there nationals, natural or corporate, might do in any way bets their neutral position as regards sovereignty over the islands). Any degree of compliance would of course enrage Tokyo. Most countries would prefer to stay neutral in matters such as this. There is also considerable annoyance that the Chinese move was unilateral and undertaken without any consultation. Many are waiting to see if Tokyo will follow suit. In fact, South Korea already has, at least to some extent, expanding its air defence zone established during the Korean War. There is some degree of overlap between this expanded zone and the one declared in November by China. The consequences here could be farcical if the result is a multiplicity of overlapping air defence zones. This would hardly be conducive to the building up of international trust and cooperation, and certainly no help at all in resolving sovereignty and jurisdictional differences.

Finally, we should see these island disputes in the context of a range of similar problems in the Asia-Pacific beginning with Japan's demand for the return of the Kuril Islands, lost to the Soviet Union at the end of the Second World War, the island dispute between Japan and South Korea in the Sea of Japan, and multilateral disputes over islands in the South China Sea. China's position here can readily be understood by looking at a map. Pending the resolution in its favour of the Taiwan issue, and this does not appear to be on the agenda for some time yet, the country is somewhat hemmed in as regards maritime jurisdiction mostly by the Japanese archipelago, but also otherwise insignificant island groups such as Senkaku/Diayou. And then there is the immensely complicating issue of national pride.

Final Thoughts
One of the common threads running through the three issues outlined here is perhaps a certain lack of respect for the other countries involved, their governments and indeed their people. Nursing feelings of innate superiority, or the adoption of bully boy tactics is completely inimical to the notion of the sovereign equality of states. While it is obvious that for many purposes all states are not equal, the international system proceeds on the assumption that they are. Given that international cooperation is an essential ingredient in the modern conduct of affairs, it is surely important to create and maintain a climate which is conducive to it, where states are generally happy to work with others in their mutual interest, and not feel that they are being coerced into doing something the consequences of which they may not be able to appreciate, for which they feel is against their national interest, or where there is simply coercion of one sort or another. Sovereignty and national pride can be very tender plants, and it must surely be common knowledge by now that it is extremely inadvisable to bruise or trample on them.

 

 

 

 



[1] The title of this article, its first paragraph and the flag are the work of IZ editor Craig Bateman, whose contributions (and unflagging editorial suggestions over the years) are gratefully acknowledged by the writer of what follows.

[2] Bahasa (= language) Malaysia was intended to perform a similar function, as indeed was Mandarin in China.

[3] This was the so-called "Limbang Revolt" of 1962.

[4] Outrage at Indonesia's actions and the seeming lack of willpower to confront it on the part of Western governments was voiced, inter alia, by Noam Chomsky, who castigated the western media for its failure to report fully on what was happening during the Indonesian occupation. The writer remembers Chomsky coming to Dalhousie University in Halifax, Nova Scotia, to urge it not to participate in an Indonesian environment project to be funded by the Canadian International Development Agency, on the (somewhat tenuous) grounds that to do so would "lend legitimacy" to the Suharto regime. He was listen ed to with respect, but his urgings went unheeded. Those of us who were to be involved with the project (and mine was very minor) thought that the provision of potable water to impoverished settlements had little or nothing to do with conferring legitimacy on Suharto.

[5] Recognition, moreover, by a state whose international position was far from obscure.

[6] This led to an outbreak of extreme and destructive violence on the part of "pro-Jakarta militias", which wrought much havoc. Order was restored only by the intervention of a task force drawn from the armed forces of neighbouring states led by Australia.

[7]  http://www.icj-cij.org/docket/files/156/18078.pdf.

[8] http://www.icj-cij.org/docket/files/156/17844.pdf

[9] The Acronym is comprised of the first letters of the Portuguese for corruption, cronyism and nepotism.

[10] The extra ordinarily asymmetry in the economic well-being of the parties would be unlikely to play a role of any sort: the International Court has always set his face against considering non-legal issues. It is not difficult to see why: how could it judge between what might be competing accounts of the needs and economic well-being of the parties? The Statute of the Court directed to apply first treaties and then principles of customary international law. There is no mention made of socio-economic and similar factors.

[11] This was well illustrated by the furious outbursts of violence against Chinese business concerns in Vietnam in April/May 2013, which resulted in at least one death.

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