Australia-RI seabed boundaries now settled

Thu, 27 Mar 1997, 00:00 WIB | Source: JP

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:

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