Thu, 27 Mar 1997

Australia-RI seabed boundaries now settled

By Richard Woolcott

"There is a tide in the affairs of men which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries. On such a full sea are we now afloat; And we must take the current when it serves, Or lose our ventures".

CANBERRA: Australia and Indonesia have taken the tide of which Brutus spoke in Shakespeare's Julius Caesar. All maritime boundaries between the two countries, which cross the Arafura and Timor Seas and the Eastern Indian Ocean, have now been settled in a treaty of major practical and symbolic important signed March 14, 1997 in Perth by Alexander Downer and Indonesia's Foreign Minister, Ali Alatas.

The Exclusive Economic Zones (EEZ) -- those areas of the sea beyond each country's 12 nautical mile territorial sea out to 2000 nautical miles from their coastlines -- over which each country has sovereign rights to explore, exploit and manage natural resources -- have now also been settled.

Signature in Perth was appropriate because of its proximity to Indonesia, the opportunities Indonesia's ongoing economic growth offers Western Australia and because the sea boundary covered by the treaty is situated to the north-west of that capital.

The treaty has yet to be ratified by both the Australian and Indonesian House of Representatives but I do not anticipate any problems with this process. Meanwhile, its signature is a milestone in our relations with our large and important neighbor to our immediate North which stretches a distance from Broome in Western Australia to Christchurch in New Zealand.

The signed treaty completes a lengthy negotiating process which began in the late 1960s, shortly after the collapse of the Sukarno administration and the advent of Soeharto's New Order government in 1966. The three previous treaties, dealing with other parts of what is one of the longest and most complex seabed boundaries in the world, covered the areas:

* from west of Cape York to the north of Arnhem land, signed in 1971.

* from the north of Arnhem Land to a point south of West Timor, signed in 1972 (but leaving a gap south of East Timor, then still a Portuguese colony); and

* the Timor Gap Treaty, signed in 1989 by Gareth Evans and Ali Alatas in an aeroplane over the Timor Sea, delineating provisionally the gap not covered by the 1972 treaty.

Disputes over land and sea boundaries have been -- and still are -- the cause of conflicts and tensions between sovereign states and this penultimate step in settling the sea border between Australia and Indonesia is of substantial political importance. I used the word penultimate because the Timor Gap treaty, mentioned above, which came into force in 1991, unlike the other three treaties is a "provisional" settlement due for review in 2031.

One question which will be asked is why it has taken more than 25 years to settle the maritime boundary between the two countries. Negotiations about borders, whether about land or sea, between neighboring nations with conflicting claims have, historically, usually been a long, complex and, in many cases, an unresolved process. Countries' national pride and economic interests are involved. It took the Netherlands and neighboring Belgium twenty five years to negotiate a double taxation agreement, a simple matter compared to delineating a seabed boundary.

I recall the former minister of foreign affairs of Indonesia, professor Mochtar Kusumaatmadja, who spoke excellent colloquial English, asking me to his residence on a Sunday morning in 1977 in Jakarta, when I was Australian Ambassador to Indonesia, to discuss the timing for resuming negotiations about the seabed boundary. Foreshadowing a tough negotiating position, he said we had "taken Indonesia to the cleaners' in the 1972 treaty. This was somewhat overstated but real interests were involved and some Indonesian lawyers were critical of the outcome of that treaty. In fact, the discussion turned to other issues because, on consulting his horoscope, Mochtar decided it was not a good day for negotiation!

Such negotiations are never easy but the eight rounds of consultations preceding the signing of the treaty which started in April 1993 were according to our chief negotiator, Tony Vincent, "fair and amicable". My reading of the treaty is, indeed, that it is fair to both sides. There was a window of opportunity to conclude the seabed agreement before the legislators' elections in Indonesia next May and the presidential election next year and while President Soeharto, who is keen to resolve Indonesia's outstanding sea boundary matters during his presidency, is in office. Indonesia is now more interested in "engaging South". Both countries wanted to complete the seabed boundary and were willing to make concessions to achieve a fair outcome. It is sound diplomacy that the opportunity has been taken.

One issue which arises is how the new treaty might affect the provisional Timor Gap treaty. The answer is that it does not affect this treaty. It would, however, be timely to clarify several matters related to the Timor Gap treaty, which have impacted on our relations with Indonesia. In 1995 there was considerable and often inaccurate media comment related to Portugal's case before the International Court of Justice against Australia for signing the treaty. It was stated that our international reputation was on the line, our relations with Indonesia were under threat and that, if the judgment went against Australia, exploration leases in the Timor gap would be invalid.

None of these assertions were true and, in any case, Portugal, which had argued that Australia should have negotiated with it as, legally, the "administrating power" in East Timor and not with Indonesia, lost its case in a 14 to 2 judgment. The Portuguese claim to be the administering power was fatuous since the Portuguese Administration led by Governor Pires abandoned Dili and the mainland of East Timor in conditions of civil war in August 1975, taking with them not only a colonial legacy of maladministration but the Governor's stock of French Champagne. The validity of the legislation which implements the treaty in Australia had also been challenged by the East Timor lobby in 1994. The validity of the Treaty, domestically, was, however, upheld by the High Court.

East Timorese activists and members of the anti-Indonesian lobby in Australia, however, were able to gain some community support for their assertion, despite its inaccuracy, that Australia had been motivated by greed in negotiating the Timor Gap treaty. "Blood for oil" was their slogan. But this slogan, while eye catching on television, when painted in red with drops of blood dripping from its letters, is based on the false premise that East Timorese blood has been sacrificed so that Australia could benefit under the treaty from any oil in the Timor Gap which they said rightly belonged to the East Timorese. The fact is, however, that the northern boundary of the Zone of Cooperation established under the treaty is based on Australia's long held claim to this area of the seabed.

It is important that the wider community understands that any resources in this Zone are, in the eyes of the government, the Opposition, and their legal advisers, Australian resources; not those of Portugal or a possible independent East Timor. None of this is changed by the Timor Gap treaty. Moreover, successive Australian governments have recognized Indonesian sovereignty over East Timor de jure, since 1979. (Over thirty other governments have recognized Indonesian sovereignty, explicitly or implicitly, over East Timor despite occasional assertions in our media that Australia alone has done so).

How does this latest treaty impact on the bilateral relationship? If our relations with Indonesia are to be a soundly based partnership in the future -- and not a means of masking inherent differences and tensions -- then they need to rest on a firm foundation of shared national goals and interests, underpinned by public support. Despite our different backgrounds and cultures, we do have shared national goals and I believe the treaty is another important building block underpinning the relationship. Mutually agreed boundaries between neighboring countries not only contribute to avoiding potential tensions over the exploitation of resources, including fish, but they also contribute to the notion of shared security.

The Agreement on Mutual Security, signed in December 1995, the Agreement on the Australia Indonesia Development Area (known as AIDA) which resulted from the Australia Indonesia Ministerial Forum last year and yesterday's treaty completing the sea bed boundary are three major bilateral agreements reached in the last fifteen months which have, collectively, added further and considerable substance to the bilateral relationship.

Indonesia is an emerging tiger economy and a nation of increasing influence. It still awaits the author of its next chapter and its politics may be quite volatile during the next three years. In this context also it serves Australia's national interests to have the seabed boundary settled.

Helping reduce potential tensions and to promote a stable, prosperous and peaceful Indonesia, as well as a wider Southeast Asian region in which we are fully engaged is a task of enduring importance for Australia. The agreed delineation of the seabed boundary between Australia and Indonesia, finalized in Perth in the middle of this month, is a valuable and important step in this direction apart from its likely substantial economic benefits to this country.

The Writer is a Consultant on Asia-Pacific to the legal firm Allen Allen and Hemsley and has been a Consultant to BHP Petroleum on seabed matters. He is a former ambassador to Indonesia.

-- The Australian.

Window A:

One issue which arises is how the new treaty might affect the provisional Timor Gap Treaty. The answer is that it does not affect this treaty.

Window B:

The signed treaty completes a lengthy negotiating process which began in the late 1960s, shortly after the collapse of the Sukarno administration and the advent of Soeharto's New Order government in 1966.