new internationalist
issue 253 - March 1994

The Incredibility Gap
A 250km gap in the international fence has been breached by two powerful nations,
at great cost to East Timor. George Fisher reports.

Facing each other across a makeshift desk in an Australian airforce jet, the turbulent waters of the Timor Sea some thousands of metres below, the Australian and Indonesian governments in December 1989 signed a unique but damning agreement. Two signatures secured a joint zone of co-operation for the exploration of oil in the disputed area known as the Timor Gap, north-west of Darwin. The event was the culmination of considerable diplomatic ingenuity. It was also an act laced with hypocrisy and opportunism.

The Timor Gap itself had been created earlier as a result of maritime boundary agreements struck by Australia and Indonesia in the early 1970s. These fixed a new maritime boundary in the Arafura and Timor Seas, but left a 250km gap opposite what was then Portuguese Timor. When Indonesia invaded East Timor in 1975-76, it also usurped Portugal in the Timor Gap dispute.

Australia's decision to recognise Indonesia's annexation was strongly influenced by a desire to resolve the Timor Gap issue. The reasons for such an agreement are self-evident. And there are more than economic considerations at the heart of the decision. However, it is clear that the Treaty - relating to the mining and exploration of some 61,000 square kilometres of seabed - has an enormous impact on the East Timorese people even apart from the matters of international law.

By perpetuating the Gap, the rights of the East Timorese have been yet again seriously violated. This 'paper annexation' of their maritime territory takes from them the ocean resources so crucial to their economy, and hands over the spoils to their aggressors. It also robs them of their self-determination.

Seismic survey work has indicated high petroleum potential for the Gap, its multiple dome structures estimated as having as much as seven billion barrels of oil and one billion barrels of condensate (Petroleum Gazette, 1988/3). With unquestioned diplomatic flair, the zone was divided into three areas, giving varying degrees of tax concessions, rental and other privileges to both Indonesia and Australia, but nothing to East Timor.

In February 1991, Portugal instituted proceedings at the International Court of Justice (ICJ) against Australia in a dispute concerning its dealings with East Timor. Indonesia does not accept the ICJ jurisdiction and so Australia is the sole defendant. The Australian government remains outwardly confident of an eventual court victory. If however, prolong the case for several years. The outcome depends to some extent on pressure from oil companies, who would prefer to start exploration sooner rather than later. Some critics have noted that Australia would be better off financially to disregard any negative ICJ ruling, pay whatever fines are imposed, and open the door for the mining companies regardless of international sentiment.

Revolving as it does around human rights expectations and internationals boundaries, Timor Gap has inevitably become a legal matter. This has been further complicated since Jose Ramos Horta, Jose Gusmao and Abel Guterres brought legal action to the High Court of Australia in June 1993 to declare that the Australian Government's entry into the Timor Gap treaty - and the subsequent Australian enacting legislation - was invalid.

Late last year, Chief Justice Sir Anthony Mason ordered that the plaintiffs make comprehensive written submissions of their arguments by April 1994. The Commonwealth of Australia would then have two months to reply to these submissions before the case would be set down for the hearing before the full bench of the Court.

Their challenge is that it is not within the power of the Constitution of the Commonwealth of Australia to enact legislation which is based on a Treaty which is itself contrary to established procedures of international law.

This is an area of Australian constitutional law which is very much undecided. The source of the external affairs power has clearly been seen as based on international concern, a euphemism for international law, by a number of the seven judges who comprise the High Court. The external affairs power has clearly been seen as based on international concern, a euphemism for international law, by a number of the seven judges who comprise the High Court. The external affairs power gives the Commonwealth Governments power to override state governments in a number of areas when in can show that it is acting in accordance with an international treaty or international customary law.

This has enabled the Commonwealth to do such things as block the construction of the Franklin Dam in Tasmania, and make interim orders preserving forests in both Queensland and Tasmania pending their listing as World Heritage areas. However, never before has the Commonwealth Government attempted to use such power in a way opposed to the letter and spirit of international law. As a result, the limits of the legislative power have yet to be explored.

These limits are the crux of the case being run by the three East Timorese plaintiffs. If as one High Court judge has said, the external affairs power gives Australia the capacity to act fully as a member of the community of nations, can it also give it the capacity to deny the clear assertions of the international community when it is motivated by its own self-interest? The answers will not only lead to a tangible outcome for the resolution of the ongoing East Timorese problem, but are important in shaping the future of Australia and its place among the nations of the South East Asia and Pacific region. There must be universal respect for human rights.