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 19^th 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 2^nd 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.