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Explainer: Australia and Timor Leste in The Hague

Several issues of international law arise from Timor Leste’s dispute with Australia over the negotiations of a 2006 treaty regulating the exploitation of petroleum and similar resources in the Timor Sea…

Timor Leste claims that a treaty with Australia on regulating the exploitation of petroleum and similar resources in the Timor Sea is now invalid. EPA/Antonio Dasiparu

Several issues of international law arise from Timor Leste’s dispute with Australia over the negotiations of a 2006 treaty regulating the exploitation of petroleum and similar resources in the Timor Sea, which has now reached The Hague.

Timor Leste now asserts the treaty is invalid. Its argument is that the negotiations in 2004-05 leading to the treaty’s conclusion were not conducted in good faith because Australia engaged in spying during those negotiations.The case has been given prominence after Australian intelligence agencies raided the offices of a lawyer and detained a whistleblower involved earlier this week.

Legal issue #1

The first legal issue to arise is whether international law prohibits a state from spying against another state.

For spying to be prohibited, and given the absence of a treaty prohibiting the behaviour, there needs to be both practice by the vast majority of states sustaining such a prohibition, as well as a conviction by states that the practice is unlawful.

The difficulty is that all states engage in spying. This observation is in itself sufficient to defeat the existence of the rule, although other relevant questions may be asked in this context.

For example, do states, when caught spying, try to justify their spying on the basis of a legal exception to the purported prohibition? If so, it would testify to the purported rule’s existence. This, however, is not borne out by practice. States generally assert instead that they do not comment on matters of national security.

Secondly, does state behaviour reveal a conviction that spying is unlawful, not only for other states but also by reference to their own behaviour? To be a rule of law, it must apply equally to all states in the community to which the rule purports to apply.

Clearly, all states engage in spying, so it is doubtful – for the purposes of international law (and by extension in terms of a state’s responsibility) – that spying is prohibited.

That being said, international law does prohibit interference in the domestic affairs of another state. For such interference to be prohibited, however, an element of coercion – which need not be physical – is required.

Whether Australia’s purported interference in the conduct of East Timor’s internal affairs crossed that threshold must be assessed on the facts.

Legal issue #2

The second legal issue – and perhaps the most interesting aspect of the case – is whether the treaty is invalid as a consequence of the negotiations leading to its conclusion being tainted by spying and, consequently, not having been conducted in good faith by Australia.

The principle that treaties must be negotiated in good faith is well established in international law. Whether a breach of this rule occurred does not depend on whether or not Australia’s alleged spying was unlawful. However, if there was a prohibited interference, it would perhaps be easier to establish that Australia lacked good faith in its conduct of negotiations. Timor would probably need to establish that the spying, as the alleged breach of good faith, was in legal terms sufficiently proximate or related to the negotiations.

The crucial point, however, is that if Australia through its alleged spying activities failed to negotiate in good faith, the breach of international law that has taken place is simply a breach of the fundamental obligation to negotiate in good faith.

This, however, does not necessarily mean that such a breach renders the 2006 treaty invalid. That is a separate question.

The Vienna Convention on the Law of Treaties, mentioned as being relied upon by Timor Leste in its claims against Australia, lists the grounds for treaty invalidity, and does so exhaustively.

Significantly, these grounds do not include a failure to negotiate in good faith. Nor indeed are unequal treaties included amongst the grounds for invalidity. These are treaties, generally concluded in the 19th century, in which the parties’ bargaining position was so unequal that they lacked in reciprocity. The doctrine of unequal treaties has never clearly been adopted as part of international law – although in this case, such behaviour might constitute a prohibited interference.

How might the case play out?

Of the grounds of invalidity present in the Vienna Convention and on the available facts, only one might possibly apply and even then it might be difficult to establish. Timor Leste would need to show that Australia has breached a rule of such importance for the international community as a whole that no alteration of or other departure from its prescriptions is permitted. The rule in question here is self-determination.

Timor Leste enjoys permanent sovereignty over natural resources, which results from self-determination. It could be alleged that Australia, in failing to conduct negotiations in good faith, deprived Timor Leste of that right.

However, such a claim would also rest on it being shown that permanent sovereignty is enjoyed over resources in the continental shelf, over which Timor has mere sovereign rights, but not sovereignty. If such a claim were successful, the treaty would indeed be invalid.

That said, if, as is perhaps more likely, it was merely established that Australia breached its obligation to negotiate the treaty in good faith, the treaty would not, as indicated above, be invalid on that basis alone. However, Australia would then be under an obligation to make reparation. This is the principal consequence of state responsibility.

Significantly, this obligation of reparation might (though not necessarily) in turn impact on the continued operation of the treaty. This is because the obligation of reparation requires the restoration of the situation to what it would have been but for the unlawful act. Arguably, it might even result in an obligation to renegotiate the treaty so as to bring about an instrument not tainted by the lack of good faith of one of the parties.

This might be a better for solution for Timor Leste than the mere invalidity of the treaty. In effect, it would yield the same result but also provide an opportunity for Timor Leste to try to tailor the new treaty more to its own advantage.

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23 Comments sorted by

  1. Craig Myatt

    Industrial Designer / R&D

    Why don't we just give up the rights willingly, to say, a portion of the gas field, so that Timor can at least start to exploit the area itself, to earn money? (presently gets 50% of earnings, not control) While these are legal questions, I had the impression that the main issue for Timor was a moral one, and that does not necessarily need to be solved by court action.

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  2. Andy Cameron

    Care giver

    In fact I'd argue that under customary international law, spying on other sovereigns is compulsory, and that any sovereign outed as not spying on others clearly should be ejected from the UN.

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  3. Andy Cameron

    Care giver

    "Nor indeed are unequal treaties included amongst the grounds for invalidity. These are treaties, generally concluded in the 19th century, in which the parties’ bargaining position was so unequal that they lacked in reciprocity."
    What is an "unequal treaty" and why should they be legally invalid?

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    1. Andy Cameron

      Care giver

      In reply to David Roth

      Thanks for your help David. I followed your advice and discovered that "unequal treaty" was a term used by mid-20th century Communists to describe treaties between China and Great Britain in the 19th century. Completely irrelevant to the issues raised in this article, unless you are saying the author is coming from the perspective of a mid-20th century Communist?

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    2. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Andy, if you had read the Wikipedia article more closely, you would have seen that 'unequal treaty' applied also to Korea's and Japan's treaties with western powers. The Wikipedia entry was not written by a Communist, since modern Chinese descriptions of the 'unequal treaties' continue to be much, much more strident and self-righteous. You will find that non-Communist and Japanese historians use the term also. The common sense and objective meaning of 'unequal treaty' is where one side has a near-monopoly…

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    3. Andy Cameron

      Care giver

      In reply to David Roth

      David, I think you'd better let Sarah take this one, given that the notion of "unequal treaties" is not recognized in international law, and most certainly IS associated with the Chinese Communists. As Sarah says: "these are treaties, generally concluded in the 19th century, in which the parties’ bargaining position was so unequal that they lacked in reciprocity." Though notably Sarah relies on the passive voice, thus disguising exactly "who" thinks/thought that. Either way, their identity is not…

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    4. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Actually, I was letting Sarah take this one. If you read what I actually said, I wasn't claiming (or 'really thinking') that the notion of 'unequal treaties' was recognised under international law. I left that point to Sarah. I was giving you the historical background. The notion of inequality I was describing was not 'simple' inequality, such as power or wealth, which is quite compatible with a legal system of contracts. It was about actual deception/force majeure/duress/unfair tactics. This invalidates…

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    5. Andy Cameron

      Care giver

      In reply to David Roth

      David, I'm going to have to bow out for your own good. First you raise issues in one my strong points - the Law. But now you have raised Thucydides, another strength of mine. Best you keep quiet, and leave Sarah to explain.

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    6. Andy Cameron

      Care giver

      In reply to David Roth

      "But whatever treaty makers and lawyers may say, there remains a moral position" Which neither you nor Sarah has any authority over.

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    7. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Andy, you asked what is an 'unequal treaty', I told you. Your take of it was incorrect. The Chinese Communists did not invent the term, and they do not own the term. Because you have studied Thucydides does not imply that I haven't. I quoted from memory from the Melian 'debate' - I have checked my quote now and the sense is correct. I was not raising legal issues, I was talking about moral issues. And I will not keep silent on moral issues or be patronised.

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    8. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Incorrect again. I wasn't claiming 'authority' over the moral position. People can and do form their own views over moral matters without my assistance or the assistance of lawyers. I was explaining the historical background to the moral issue. And I would also point out that moral issues are often major factors (but not the only ones) in having laws changed, for example the abolition of slavery. The Dred Scott decision was the triumph of the lawyers, then the law was changed. So I would suggest that if the public perceives that moral considerations are regularly set aside by the law, pressure will build to get those laws changed. International law is not immutable.

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  4. Comment removed by moderator.

  5. Ben Marshall
    Ben Marshall is a Friend of The Conversation.

    Writer

    I, for one, hope the Timorese nail Australia to the Hague wall, use the treaty for something useful like toilet-paper, and strike a new, fair treaty, one which puts the dotted line fairly half-way between our two nations.

    We cheated and lied to a nation that we have every reason to hold dear due to their support in WWII, to help them through their post-colonial hangover and the horrors of the brutal Indonesian regime, and we should at very least regard them with respect as our closest neighbour…

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    1. Lynne Newington

      Researcher

      In reply to Ben Marshall

      Considering the NGO's, influence of the church, and "the long winding road of peace and security" it supported , I can't understand why they were taken advantage of so badly.
      Wikipedia tells us many the leaders trained to be priests.

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  6. Chris Owens

    Professional

    The context also needs to be considered. This is not two equal nation states negotiating. It is one of the richest per capital in the world against one of the poorest, who were at the end of 25 years of oppressive Indonesian occupation. Howard and Downer authorised the spying on East Timor during negotiations and Downer subsequently worked for Woodside Petroleum, who with the Aust government were the main beneficiaries of the deal.

    Land of the fair go.

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    1. Andy Cameron

      Care giver

      In reply to Chris Owens

      "This is not two equal nation states negotiating"
      The UN and international law say you are wrong.

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    2. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      The legal definition of equality is not the same as the common sense definition.

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    3. Andy Cameron

      Care giver

      In reply to David Roth

      The author is not a Professor of "Common Sense", and neither are you. The article is about "international law".

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  7. Charles Scheiner

    Researcher

    The fundamental issue is not whether spying invalidates the treaty, but who the oil and gas under the seabed, as well as the maritime territory above it, belongs to. For the last several decades, the predominant international legal practice has been to use a median line (halfway between the coasts) to set the boundary when two nations' claimed Exclusive Economic Zones overlap. Although Australia accepted this practice in a 2004 treaty with New Zealand and an (never-ratified) 1997 treaty with Indonesia…

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    1. Andy Cameron

      Care giver

      In reply to Charles Scheiner

      "but when the law is inconvenient for Australia it refuses to allow legal processes to be used."
      Charles, by definition "law" is not something those subject to it can decide when it is and is not to be used.

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    2. Charles Scheiner

      Researcher

      In reply to Andy Cameron

      Andy, I think your "definition" does not apply to international law and states. Many international conventions have "op-out" provisions where by a party can withdraw from some or all of the legal requirements of the convention. That's what Australia did in March 2002 from the two international dispute resolution mechanisms regarding maritime boundaries that it has previously adhered to. You can read their press release at http://www.laohamutuk.org/Oil/Boundary/2002/PRMar02.pdf and the official legal documents and National Interest Analyses from http://www.laohamutuk.org/Oil/Boundary/CMATSindex.htm#Australia

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  8. Mark Trafford

    Relationship Manager

    The reality is nations are sovereign and they may choose to subject themselves to international law or they may not.

    Also the reality is nations are not equal.

    I agree with the Australian government’s position that the Australian continent including the continental self is the territory of the Australian nation and we cannot agree to any claims by another nation to it.

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