Afghanistan’s suffering has reached unprecedented levels. Can a presidential election make things better?



A supporter of Ashraf Ghani takes part in an election rally in Kabul last month.
Jawad Jalali/EPA

Safiullah Taye, Deakin University and Dr. Niamatullah Ibrahimi, Deakin University

After months of delays and uncertainty, Afghanistan is set to hold its presidential election on Saturday. This election, the fourth since the overthrow of the Taliban regime in 2001, has critical implications for the political stability and security of the country.

Most importantly, it will test the resilience of the country’s fragile democratic process and shape the conditions under which the now-defunct negotiations between the United States and the Taliban can be resumed with more meaningful participation from Kabul.

And if the vote produces a broadly acceptable and functioning government – which is not a guarantee after the last presidential election in 2014 and parliamentary elections in 2018 – it will have profound repercussions for the Afghan people.




Read more:
How to end Afghanistan war as longest conflict moves towards fragile peace


Nearly two decades after the US-led coalition invaded the country and ousted the Taliban, Afghanistan is still in a downward spiral. In June, the country replaced Syria as the world’s least peaceful country in the Institute for Economics and Peace’s Global Peace Index report. The BBC tracked the violence in the country in August and found that on average, 74 Afghan men, women and children died each day across the country.

Further, the number of Afghans below the poverty line increased from 33.5% in 2011 to nearly 55% in 2017.

And in another bleak assessment of where things are at the moment, Afghan respondents in a recent Gallup survey rated their lives worse than anyone else on the planet. A record-high 85% of respondents categorised their lives as “suffering”, while the number of people who said they were “thriving” was zero.



Tests of democracy in Afghanistan

Despite the major challenges posed by insecurity and risks of electoral fraud, Afghanistan’s recent elections have been serious contests between the country’s various political elites.

Ordinary voters take extraordinary risks to participate in the polls. Thanks to a dynamic media sector, these contests involve spirited debates about policy-making and the visions of the candidates. This is particularly true when it comes to presidential elections, as the country’s 2004 Constitution concentrated much of the political and executive power in the office of the president.

There have been serious tests of Afghanistan’s nascent democracy before, however.
The 2014 election was tainted by allegations of widespread fraud, pushing the country to the brink of a civil war.

The political crisis was averted by the formation of the national unity government, in which Ashraf Ghani became president and his main challenger in the election, Abdullah Abdullah, took the position of chief executive officer, with powers similar to a prime minister.

Abdullah Abdullah is again the main challenger for President Ashraf Ghani, similar to the 2014 vote.
Jalil Rezayee/EPA

Negotiations with the Taliban

Since the withdrawal of most of the US and NATO forces from Afghanistan in 2014, the Taliban has considerably expanded the areas under its influence. Nonetheless, the insurgent group has been unable to score any strategic military victories by gaining control of provincial or population centres.

In 2016, President Donald Trump came to the White House with the promise of ending the war in Afghanistan. However, after a meticulous assessment of the risks associated with a complete troop withdrawal, he backed away from that pledge.

Trump instead called the 2014 departure of most US troops a “hasty withdrawal” and declared a new strategy that included an increase in the number of US forces in Afghanistan.

Afghan President Ashraf Ghani (centre) has adopted a populist style in his re-election campaign to connect better with voters.
Ghulamullah Habibi/EPA

The deployment of additional troops significantly escalated the military campaign against the Taliban but failed to decisively change the security dynamics in the country.

Then, in 2018, the Trump administration formally began engaging the Taliban in a series of direct negotiations in Qatar. The process was called off by Trump earlier this month when it was reportedly at the threshold of an agreement.




Read more:
A peace agreement in Afghanistan won’t last if there are no women at the table


Critics noted, however, the many flaws of this approach and the haste with which the negotiations were conducted by Zalmay Khalilzad, the US special representative for Afghan reconciliation.

Ironically, at the insistence of the Taliban, the process excluded the government of Afghanistan, which the Taliban refuses to recognise as the legitimate authority in the country. This led to phased negotiations, whereby a deal between the US and the Taliban was expected to be followed by an intra-Afghan dialogue and eventually a ceasefire.

A successful presidential election that produces a broadly acceptable outcome can significantly strengthen the position of the new government in negotiating and implementing a peace process with the Taliban. This is one reason why Ghani does not want to be sidelined from the negotiations.

Challenges for the upcoming vote

The election involves a significant number of political players and coalitions, but is essentially a replay of the 2014 poll between Ghani and Abdullah. While none of the other 13 candidates have a realistic chance of winning, they can split the votes to prevent one of the leaders from claiming victory in the first round. A run-off was required in the last two presidential elections in 2009 and 2014.

Another factor is the threat of violence from the Taliban. The group has already vowed to violently disrupt the election. In recent weeks, it has claimed responsibility for deadly attacks on election rallies, including a devastating attack on the campaign office of Amrullah Saleh, the first vice-president on Ghani’s ticket.

Supporters of incumbent President Ashraf Ghani at a rally in Jalalabad this month.
Ghulamullah Habibi/EPA

Insecurity will also likely prevent significant numbers of people from participating in the process. The number of polling stations has significantly dropped to less than 5,000 this year compared to 7,000 in 2014, highlighting the deteriorating security conditions.

There are also fears that more polling stations will be closed on election day, both for security reasons and political reasons (the latter in areas that are likely to vote for opposition candidates).




Read more:
Afghanistan election: with Kabul in lockdown, we watch and wait


This election is unlikely to be a game changer in the face of the magnitude and complexity of the challenges facing Afghanistan and its people.

Nonetheless, the election presents a rare opportunity for the country’s people to exercise their rights to choose who governs the country.

And if the supporters of the leading candidates stay committed to a transparent process, even a reasonably credible outcome can go a long way in restoring confidence in the country’s shaky institutions and strengthening the position of the government in any future peace negotiations with the Taliban.


This article was corrected on September 27, 2019. The forthcoming election is the fourth since the Taliban was overthrown in 2001, not the third as originally stated.The Conversation

Safiullah Taye, Phd. Candidate and Research Assistan, Deakin University and Dr. Niamatullah Ibrahimi, Associate Research Fellow, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?



Protesters outside the Australian embassy in Dili, Timor-Leste, in 2016, demanding a settlement of the border dispute between the nations.
Antonio Dasiparu/EPA

Michael Leach, Swinburne University of Technology

On August 30, Timor-Leste will celebrate the referendum that gave it independence from Indonesia. For the people of this small island, it has been a long battle – and one that continues today. You can read our companion story on the island nation’s struggle for independence here.


This Friday marks the 20-year anniversary of the day the East Timorese people voted overwhelmingly for independence from Indonesia after a 24-year occupation.

Another significant anniversary comes next month, on September 20. That was the day of the arrival of the INTERFET mission, the Australian-led multinational force that brought an end to the violence that wracked Timor-Leste after the independence vote.

In the intervening three weeks, 1,500 Timorese were killed in the violence, which had been orchestrated by the Indonesian military and its proxy militias. Over 250,000 were forcibly displaced to West Timor and some 80% of the infrastructure was destroyed.

Many Australians are rightly proud of their contribution to Timor-Leste’s independence, which served as a historical corrective to Australia’s longstanding support for Indonesian’s invasion and forced integration of East Timor in 1975-76. The more than 5,000 Australian soldiers in the INTERFET mission marked the nation’s largest military deployment since the Vietnam War.

Yet despite the goodwill the mission engendered in Timor-Leste for the Australian people, relations between the two nations have repeatedly been undermined by contentious negotiations over control of the lucrative oil and gas fields in the Timor Sea.




Read more:
Australia and Timor Leste settle maritime boundary after 45 years of bickering


A treaty signed last March created a maritime boundary between the states for the first time. The border is expected to come into force this week following its ratification by both parliaments – another momentous milestone in Timor-Leste’s history.

But other thorny issues remain. When Prime Minister Scott Morrison arrives in Dili for the anniversary on Friday, he will likely face calls for Australia to drop its prosecution of a whistleblower who revealed an Australian spying operation against Timor-Leste.

As former Timor-Leste leader Jose Ramos Horta said,

If Australia doesn’t show political leadership, moral leadership on this issue, every time we talk to Australian leaders I will wonder if they have a tape recorder in their pocket [or] if my office has been bugged.

Australian soldiers conducting an operation to flush out militia fighters in Timor-Leste in September, 1999.
Jon Hargest/AAP

Conflict over oil and gas

Since its independence, Timor-Leste’s relations with Australia have been overshadowed by one major factor: the oil and gas fields on its contested maritime border.

Relations hit rocky waters in 2012 when Timor-Leste challenged the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), which had been signed by the two countries in 2006. This treaty had established a 50-year moratorium on maritime boundary negotiations, or five years after exploitation of the Greater Sunrise gas field ended, whichever occurred first.

Allegations then emerged in 2013 from a former ASIS agent (now known as Witness K) that Australia had spied on Timorese officials during the negotiations over the CMATS treaty. This led Timor-Leste to launch a case in The Hague challenging the treaty for want of good faith.

Australia was embarrassed by the exposure, but determined to maintain the countries’ ongoing treaty arrangements and focus instead on revenue-sharing agreements. However, Timor-Leste argued that the bulk of the oil and gas fields in the Timor Sea would lie on their side of a median line and pushed for a permanent boundary to be drawn between the countries.




Read more:
Australia and Timor Leste reach a deal on the Timor Sea – but much remains unknown


As relations deteriorated, ministerial visits ceased for almost five years.

Because Australia had abandoned the international courts as a means of resolving the maritime boundary in 2002, Timor-Leste had only one option left. In 2016, it pioneered the use of the UN Convention on the Law of the Sea (UNCLOS) compulsory conciliation process: a non-binding but mandatory mediation between nations on maritime disputes.

The conciliation panel of five judges found the CMATS treaty’s moratorium on defining a maritime boundary was invalid. This dealt a fatal blow to decades of Australian foreign policy focused on maintaining its continental shelf claim in the Timor Gap in line with the 1972 Australia-Indonesia border treaty.

Australia could have attempted to tough it out since the tribunal’s finding was non-binding. But by this point, the Labor opposition was arguing the maritime boundary with Timor-Leste should be renegotiated in line with international law, putting additional pressure on the government to resolve the dispute.

A separate dispute over China’s claims in the South China Sea, also settled in 2016, made Australia’s position increasingly untenable, as well. The world was urging China to respect an international tribunal’s maritime ruling, so it would be difficult for Australia not to do the same.

A new boundary finally set in the sea

Once the UNCLOS opening decision came down, the two sides began negotiating a border in good faith. Timor-Leste dropped its espionage case against Australia in the Permanent Court of Arbitration in The Hague, and later terminated the CMATS treaty, without Australian objection.

Announcement of the new maritime border treaty followed in March 2018. It was a major diplomatic breakthrough and soon led to the resumption of ministerial visits.

The new maritime boundary between Australia and Timor-Leste.
Department of Foreign Affairs and Trade

The treaty created a median-line boundary in the former Timor Gap, placing the wells in the former Joint Petroleum Development Area (JPDA) in Timor-Leste’s sovereign waters.

The Timorese believe there is another A$1.5 billion of oil reserves in this area, but as these fields near the end of their life, the greater game lies in the as-yet-untapped Greater Sunrise field. This field straddles the eastern side of the new boundary and is believed to be worth in excess of US$40 billion.

Timor-Leste also achieved a major increase in royalties from the future development of this field, up from 50% under the CMATS treaty to 70-80%, depending on whether the pipeline eventually goes to Timor or Darwin.




Read more:
For Timor-Leste, another election and hopes for an end to crippling deadlock


China’s potential role in development

Since then, Timor-Leste’s focus has shifted to negotiations with its commercial partners over its ambitious plans for the Tasi Mane oil and gas megaproject on its southern coast.

This project could bring additional challenges for the relationship with Australia. The East Timorese government estimates that external financing will provide some 80% of the estimated US$10.5-12 billion funding for the project. And Timor-Leste’s ambassador to Australia has already stated that if funding partners cannot be found among Timor-Leste’s friends in Australia, the United States, Japan or South Korea, then Chinese capital would be a clear alternative.

Timor-Leste has rejected reports that China’s Exim bank offered a A$16 billion loan to finance the megaproject, though it acknowledges both countries have expressed willingness to cooperate over the separate development of Timor-Leste’s petrochemical industry.

It is also notable that China this month donated some US$3-5 million in defence materiel requested by the Timorese government.

Even though China might be seen as a logical partner for developing Timor-Leste’s oil and gas processing capabilities, Beijing’s involvement would certainly complicate relations with Australia.

Timor-Leste has generally sought to balance its relationships with key regional powers, in part to prevent the dominant influence of any single nation. The country’s foreign minister recently emphasised that discussions on the Tasi Mane project are ongoing with potential partners in Australia, the US, Europe and Asia.

Foreign Minister Julie Bishop meets with her Timor-Leste counterpart, Dionisio Soares, in Dili in 2018. She was the first Australian government minister to visit Timor-Leste in five years.
Greg Roberts/AAP

Remaining obstacles to closer ties

Despite the major improvement in bilateral ties between the two countries, there are some remaining points of contention.

The prosecutions of Witness K and his lawyer Bernard Collaery in the espionage whistleblower case have been criticised by Horta and another former Timor-Leste leader, Xanana Gusmão. This week, Gusmão indicated he would appear as a witness to give evidence on behalf of the two, raising the potential for further embarrassment for Australia.

Some political activists in both Australia and Timor-Leste have also called for Canberra to pay back oil and gas revenues it has received from the JPDA since the border treaty was signed in 2018, and accused Australia of delays in ratification.

While these accusations have made headlines, Timor-Leste’s parliament had not ratified the treaty either until last month. In any case, Timorese NGOs point to the far larger question of up to US$5 billion in revenues that Australia has received dating back to 2002, when revenue-sharing agreements began.

But it appears there is no appetite in either country to consider repayment of historical royalties.

As Australia and Timor-Leste prepare to celebrate the anniversary of the independence referendum – as well as the recent restoration of good bilateral relations – it’s worth keeping in mind that new hurdles potentially lie ahead, with implications for the wider region.The Conversation

Michael Leach, Professor, Politics & International Relations, Swinburne University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Twenty years after independence, Timor-Leste continues its epic struggle



original.
AAP/Antonio Dasiparu

Sara Niner, Monash University

On August 30, Timor-Leste will celebrate the referendum that gave it independence from Indonesia. For the people of this small island, it has been a long battle – one that continues today. You can read our companion story on the island nation’s vexed relationship with Australia here.


Indigenous myth attributes the high mountain chain that runs like a spine down the centre of the crocodile-shaped island of Timor to Mother Earth’s dying movements when she retreated underground. This mountain chain is more pronounced in the east, in the territory of Timor-Leste, and often protrudes directly down into the sea along the rugged northern coast.

The island is also surrounded by significant waters. To the south are the vast and disputed oil reserves. To the north is a deep exchange pathway for warm water moving from the Pacific to the Indian Ocean, creating conditions for a major “cetacean migration” highway for 24 different species of whale and dolphin.




Read more:
For Timor-Leste, another election and hopes for an end to crippling deadlock


In 1944, the anthropologist Mendes Correa described the Portuguese colony of Timor as a “Babel … a melting pot”, and a diverse mix of traditions is still strongly felt today.

The island is a bridge between the Malay and Melanesian world and has as much in common with Pacific Island cultures as Indonesia. The diverse indigenous societies cross the spectrum of matriarchal and patriarchal organisation.

Women are accorded a sacred status within Timorese cosmology and the divine female element is prominent in much indigenous belief. Female spirits dominate the sacred world, while men dominate the secular world. So, while women may hold power in a ritual context, they generally do not have a strong public or political voice. But they are fighting to change this and now make up a third of members in the national parliament.

By the early 16th century, Portuguese colonisers arrived in the Spice Islands of which Timor was part. This was the beginning of a colonial relationship now 500 years old.

Revolts by Timorese against Portuguese rule were frequent and bloody. Famous Timorese rebel Dom Boaventura lost an armed uprising against his Portuguese colonisers in 1911, leaving East Timor to be ruled directly from Portugal by the fascist dictatorship of Salazar for most of the 20th century.

The marginal colony remained neglected and closeted from any modern liberalising trends. But in the early 1970s the Timorese independence movement Fretilin, partly inspired by Dom Boaventura, began to oppose Portuguese colonialism, while developing a revolutionary program that included the emancipation of women.

Rosa “Muki” Bonaparte was one of the founders of the nationalist movement and the leader of its women’s organisation. While Bonaparte participated directly in the struggle against colonialism, she also stood against “the violent discrimination that Timorese women had suffered in colonial society”.




Read more:
Australia and Timor Leste settle maritime boundary after 45 years of bickering


After the colonial regime collapsed in 1974, a three-week civil war, secretly manipulated by Indonesian military agents, was the precursor to the larger war and invasion to come.

The victors of the civil war, Fretilin, reconstituted the faction of loyal Timorese soldiers serving in the Portuguese Army as resistance army Falintil. This army, and the civilian resistance, countered the massive and brutal attack of US-and-Australian-backed Indonesian military for 24 years. The horrors were kept as secret as possible, even to the point of covering up the deaths of those trying to report them, such as the “Balibo 5”.

After the Indonesian invasion of December 7 1975, much of the population of East Timor retreated to the mountains, with the resistance living in free zones for the next three years.

However, in November 1978, the Indonesian campaign of annihilation finally encircled the remaining resistance leadership and 140,000 civilians on Mount Matebian, in the east of the island. Most surrendered. They were placed in prisons and “resettlement camps” where many slowly starved to death. The violence of the 24-year Indonesian occupation affected and traumatised the whole of Timorese society.

After the collapse of the Suharto dictatorship in Indonesia in 1998, President B.J. Habibie agreed to let the Timorese decide their future in a ballot. In his honour, they recently named a bridge after him.

Xanana Gusmao was the key negotiator with Indonesia after the independence ballot.
AAP/EPA/John_Feeder

Timor’s pre-eminent leader, Xanana Gusmao, was the key negotiator with UN representatives. He conducted negotiations from his prison house in Jakarta where he’d been since 1992, serving a 20-year sentence for fighting Indonesian forces in his homeland. He persevered with ballot preparations despite growing Indonesian military and militia violence.

In the August 30 1999 referendum, nearly 80% of East Timorese voted for independence by indicating the blue and green National Council of Timorese Resistance (CNRT) flag on the ballot paper.

Extensive military and militia slayings followed the announcement of the vote. An estimated 1500 East Timorese were killed and more than 250,000 forcibly displaced into Indonesia. About 80% of infrastructure was destroyed. Survivors struggled to feed and look after their families while recovering psychologically from the mayhem.

Stories from the resistance period and 1999 are constantly remembered in Timor-Leste and are hugely significant in the new society. A hierarchy based on past service to the resistance has been established. Pensions and payments to male veterans are one of the biggest expenses for the government.

Anthropologists have described an indigenous belief that those who fought and sacrificed “purchased” the nation with their own lives and are owed a living.

Along with celebration there will be much reflection in Timor in the next weeks about the last 20 years of building a nation from “zero” and the 24 years of struggle that came before that. It will consider what they have achieved and what still needs to be done.

Hopefully, Timor-Leste can build a free and fair future for the over 1 million citizens, 60% of them under 18. They include many inspiring, educated young leaders who are ready to take up the responsibility.

As we watch and cheer from the sidelines, we hope for a less eventful and more peaceful future for all Timorese.The Conversation

Sara Niner, Lecturer and Researcher, School of Social Sciences, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

A peace agreement in Afghanistan won’t last if there are no women at the table


Susan Hutchinson, Australian National University

Over the past weeks, the US government has been in peace negotiations with the Taliban. It has been 17 years since US and allied troops first deployed to Afghanistan to overthrow the Taliban and support a democratically elected government.

The current peace negotiations have progressed further than any other attempted during the conflict. But they have two serious problems. Firstly, they have have not included the democratically elected government of Afghanistan, led by President Ashraf Ghani. Secondly, they have failed to include a single woman.

The situation so far

Peace negotiations can take many forms. At their most basic, they cover ceasefires and division of territory. But they often go further to address underlying causes of conflict and pave the way for durable solutions. They include extensive informal discussions before any formal agreement is signed.

In 1996, the Taliban took control of Afghanistan. It banned women from attending school and denied them their most basic rights. The Taliban provided safe haven for those responsible for the attacks against the US on September 11, 2001.

The US is keen to withdraw its remaining troops. But they want to secure a commitment from the Taliban that Afghanistan will not be home to terrorist groups planning attacks against the United States.

The most recent reports show the Afghan government controls 56% of Afghan districts, or 65% of the population. The Taliban controls 15% of the districts, with 29% remaining contested.

Peace negotiations are often fraught with tension about who is allowed at the table. So far, the Taliban has refused to allow the government of Afghanistan to participate in the current negotiations. The chief US negotiator, Zalmay Khalilzad, has been briefing the Afghan government on the progress of negotiations taking place in various Gulf States.




Read more:
Afghanistan: the tensions inside the Taliban over recent US peace talks


Khalilzad is under pressure from US President Donald Trump to move the negotiations forward. But excluding the government is problematic. It could indicate the likely failure of negotiations, end up making the government look even weaker than it is and/or pave the way for a return to deeply conservative religious rule for Afghanistan.

It is often tempting for power brokers to prioritise the participation of armed groups in peace negotiations. But it’s important to ensure broader participation of civil society.

Research examining every peace agreement since the Cold War shows the participation of civil society makes a peace agreement 64% less likely to fail. The key reason is the peace process is perceived as more legitimate if civil society is included. But including civil society also ensures the concerns of the broader community are accounted for and that those who carried arms do not receive positive reinforcement by monopolising the benefits negotiated in the agreement.

What about the women?

Afghan women are angry about being excluded from the peace negotiations. The country’s leading women’s rights group, the Afghan Women’s Network, released a statement calling for “the full, equal and meaningful participation of women” in the negotiations.

Life for women in Afghanistan remains hard. The latest Reuters Poll said Afghanistan was the second most dangerous country to be a woman, down from the most dangerous five years earlier. The country still makes the top of the list for violence against women, discrimination, and lack of access to health care.

But significant progress has been made in the past 17 years.
Data from the UN Development Program show gender inequality dropped by ten percentage points between 2005 and 2017.

Women have strengthened their political, economic and social presence through efforts to advance their status and respect for their rights. Girls have been able to go to school. Women have become members of parliament, governors and police.




Read more:
Trump and Turnbull have little cause for satisfaction over progress in Afghanistan


Afghanistan’s 2004 constitution includes a hard won provision that enshrines the equality of men and women. But the Taliban is calling for a new constitution and it is highly unlikely if this was agreed, such a provision would survive.

Research drawing on extensive quantitative and qualitative data has shown that the way a country treats its women is the best indicator of its peacefulness. This is a better indicator than wealth, ethnic and religious identity or democracy.

We also know that women’s participation in peace processes makes for a more effective outcome. A peace processes is 35% more likley to last at least 15 years if women are at the negotiating table, have observer status, or participate in consultations, inclusive commissions or problem-solving workshops.

Women can negotiate with the Taliban

Even so, men and people from the international community often believe the struggles faced by Afghan women mean they are not in a position to negotiate with the patriarchal Taliban.

But Afghan women like Palwasha Hassan have been working for years to pursue peace with the Taliban. Hassan sits on the country’s High Peace Council and has seen how women across the country have already negotiated with local Taliban leaders. She says “the international community is failing to value what we have achieved together and the progress we have made so far.”

She conducted a workshop in 2010 with women across local communities. Stories included one woman who had negotiated to keep a local girls’ school open by arguing that educated girls could do better in Islamic studies, including learning to read the Quran. She also guaranteed to her Taliban interlocutors that a prayer space in the school would be reserved strictly for women and girls only.

Another woman explained how she and others negotiated the release of hostages being held by the local Taliban commander. She appealed to Islamic values of life and justice, and persuaded the captors that the hostage was being held unjustly.

International agreements

The importance of women’s participation in international peace and security was codified by UN Security Council resolution 1325 nearly 20 years ago.




Read more:
As Australia takes the world stage, it’s time to fulfil promises to Afghan and Syrian women


Seventy-nine countries, including Afghanistan, have National Action Plans to guide the resolution’s implementation and the subsequent seven Security Council resolutions on Women, Peace and Security.

In October 2017, the US became the first country in the world to pass a Women, Peace and Security Act, signed off by President Trump himself. It was passed explicitly to

ensure that the United States promotes the meaningful participation of women in mediation and negotiation processes seeking to prevent, mitigate, or resolve violent conflict” across the world.

Democratic Senators have urged the Trump administration to ensure Afghan women’s involvement in the peace negotiations. But so far no one has invoked the new law.

There are few who wouldn’t hope for peace for Afghanistan, but as Palwasha Hassan says, the negotiations “have to include women, both to protect our rights and also to ensure the durability of the peace that follows.”The Conversation

Susan Hutchinson, PhD Candidate, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why Australia should face civil lawsuits over soldier misdeeds in Afghanistan


Tim Matthews, University of Sydney and John Eldridge, University of Sydney

For the past two years, Paul Brereton, a New South Wales Supreme Court judge and Army Reserve major general, has been conducting an investigation into the conduct of members of the SAS in Afghanistan. While the findings are not yet known, leaks from within the Australian Defence Force (ADF) have suggested that as many as five cases involving unlawful killings have been uncovered.

Much of the media commentary surrounding the allegations has centred on the potential criminal prosecution of these alleged offences. But a further legal issue can arise from investigations of this kind – the alleged victims (or their families) might bring civil claims against Australia’s armed forces, seeking compensation for their suffering.




Read more:
Explainer: how Australia’s military justice system works


Cases of this kind have occurred in other countries. In the United States, a number of high-profile habeas corpus petitions have been filed against the government by people who claim they were unlawfully detained by US armed forces on suspicion of being insurgents in Iraq and Afghanistan.

Claims for damages have also been successfully brought by former Iraqi detainees against private military contractors over their alleged torture at Abu Ghraib prison in Iraq.

British courts are also currently considering a number of civil suits arising out of British involvement in the conflicts in Iraq and Afghanistan.

One of those claimants, Yunus Rahmatullah, was arrested by British forces in Iraq in 2004 on suspicion of being a member of Lashkar-e-Taiba, a terrorist organisation with links to al-Qaeda. He was “rendered” by British forces to the custody of the US army in Afghanistan, where he was detained for over ten years without charge or trial and, he alleges, tortured.

Rahmatullah denies ever being a member of a terrorist organisation. He has made a well-publicised claim for compensation from the UK government, under the country’s Human Rights Act.

Why are civil claims against soldiers controversial?

We are all exposed to potential civil liability in our day-to-day lives. If we drive negligently and cause an accident, for instance, we may find ourselves liable to pay compensation to those we have harmed. The same is true of public institutions and authorities, such as hospitals and the police. Few would suggest this is unfair or unreasonable.




Read more:
Inconsistency bedevils Australia’s prosecution of war criminals


However, the extension of civil liability to the armed forces is controversial. Former Army officer Bill O’Chee, for instance, recently argued forcefully against such liability:

Service personnel who commit crimes are already subject to military criminal proceedings, and this is rightly so. However, exposing them to claims for personal injury claims would be perverse and entirely unjust.

The very idea that highly paid lawyers in comfortable courts in Australia can understand, let alone litigate these cases, is fanciful at best.

How absurd it would be for our servicemen and women to be subjected to damages claims in these circumstances, let alone be asked to find the money for legal costs and a possible damages order against them.

Should these civil claims be permitted?

Such civil liability claims have never been brought against individual ADF personnel in Australia before. This would be new legal territory. And nobody is seriously suggesting these soldiers should personally bear the burden of defending civil claims arising from the Afghanistan and Iraq wars. Rather, any potential claims are likely to be defended by the Commonwealth.

This is the way civil claims against police officers in Australia are typically resolved. In such cases, individual officers will often be required to give evidence as to their version of events. Yet the costs of defending the case, and the compensation (if any) paid to the plaintiff, are borne not by the individual officers, but by the relevant public authority.

Despite the controversy surrounding them, there are still good reasons to allow civil claims of this kind to proceed.




Read more:
Friday essay: war crimes and the many threats to cultural heritage


First, criminal and civil claims serve different purposes. A successful criminal prosecution may leave a victim with a feeling of vindication, but it typically does not result in monetary compensation. As a result, it may matter little to victims or their families if the soldiers responsible are professionally disciplined, since they may receive no compensation for their loss.

Secondly, the notion that civilian courts are not competent to adjudicate on military matters is seriously problematic.

Nobody could deny that military personnel are forced to carry out their duties in extremely difficult conditions. It is also true that many lawyers and judges have difficulty appreciating the fraught circumstances in which military decision-making occurs.

But the answer to these difficulties is not the abandonment of such claims altogether. Judges are often faced with the task of making difficult decisions about matters on which they are not experts. Civil justice would simply not work if courts threw up their hands whenever they were faced with such challenges.

Greater accountability for the military

Finally, if the Commonwealth were somehow able to avoid liability for potential civil damages in these types of cases, the ADF may have less incentive to conduct military operations in ways that safeguard the rights of civilians caught in conflict zones.

Given the limited accountability for military decision-making in the public sphere, the possibility of accountability in a civil court would promote stricter adherence to international conventions on war.

Many of the victims who may bring claims of this kind are unlikely to excite public sympathy. For example, one of the claimants in the UK cases, Serdar Mohammed, was arrested while leaving a ten-hour firefight with British troops, discarding a rocket-propelled grenade launcher and ammunition on his way.

The ConversationBut we shouldn’t allow our moral judgement of claimants like Mohammed to erode our commitment to the rule of law. Public authorities, and especially our armed forces, should be held accountable for their actions to the limits imposed by law.

Tim Matthews, Sessional Academic, Law School, University of Sydney and John Eldridge, Lecturer, Sydney Law School, University of Sydney

This article was originally published on The Conversation. Read the original article.

The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal


John Braithwaite, Australian National University

Much of the media commentary on the government prosecution of Witness K and his lawyer Bernard Collaery has focused on government duplicity in suppressing the trial until it had its oil and gas treaty signed with Timor-Leste.

But this focus on government hypocrisy has neglected the accountability of the director of public prosecutions, Sarah McNaughton. The prosecution policy of the Commonwealth says:

The decision to prosecute must not be influenced by any political advantage or disadvantage to the government.

McNaughton’s job is to be the key politically independent actor in the process. She must be a check on state political revenge.

This is why the case should of course be in open court, so the public can see how the DPP justifies its independence in the case.




Read more:
When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia


The reason people are worried about the case is that it has the appearance of state revenge against Witness K, who complained through proper channels about the illegality of the bugging he was asked to do, but a decade on served the public interest by blowing the whistle.

Alexander Downer was foreign minister when our international intelligence services were moved away from their counter-terrorism work to focus on commercial espionage on behalf of oil magnates who later offered him a lucrative consultancy. Witness K went public after Downer started working for the consultancy.

So, let the public see in open court whether this is, or is not, a coin-for-the-crown-case that rightly provoked a whistleblower, and not a political revenge case.

Public confidence has been shaken

An even greater concern is that K’s lawyer, Collaery, has been swept up in the government’s prosecution.

From assault to complex commercial crimes, it is common for both sides to make allegations of criminality against the other. We expect the DPP to show independence in assessing who is the greatest victim of crime in complex cases like this. That person will be the least likely to be prosecuted.

The prosecution policy of the Commonwealth also requires the DPP to take into account the views of crime victims in deciding how to manage its deliberations, not only about whether to prosecute. In this case, the public needs to see what kind of victim support services are being provided to Collaery.

For example, the DPP should be asking the government as one of the alleged offenders to make one very public announcement. This is that Australia will continue to abide by the spirit of the International Court of Justice order that the government keep sealed the documents it seized from Collaery’s office in 2013.

The Commonwealth should also assure the public that it will continue to desist from spying on Collaery’s legal work and any bugging or invasion of Collaery’s office.




Read more:
Lawyer and witness face charges under spy laws, raising questions of openness and accountability


Further, the prosecution policy says the government should avoid cases that “undermine the confidence of the community in the criminal justice system”.

That confidence has already been shaken by this case. It will be further shaken if much of it were heard in secret. “Openness” and “accountability” are specified in the policy, binding the DPP to “maintain the confidence of the public it serves”.

Citizen confidence that counter-terrorism laws would not be used against civilians is a public issue. It seems these laws are now hanging over Witness K and Collaery, who most Australians view as patriots rather than terrorists.

Question of resources and timeliness

Lastly, the prosecution policy emphasises that prosecutorial resources are limited. Only those cases most worthy of prosecution should go forward.

Banking and insurance crimes are a real threat to the security of our financial system. These are the kinds of cases where the “public interest” test demands more focused resources, not cases against public-spirited civil servants.

Another element of the prosecution policy is that the passage of time since the alleged offence occurred should also be taken into account.

In this prosecution, the passage of time has been taken into account in the wrong way, delaying prosecution until a political interest of the government has been realised.

The ConversationRarely have the courts in our country faced such a moment of truth for our justice values.

John Braithwaite, Professor, School of Regulation and Global Governance, Australian National University

This article was originally published on The Conversation. Read the original article.

Despite strong words, the US has few options left to reverse China’s gains in the South China Sea


Adam Ni, Australian National University

At a top regional security forum on Saturday, US Defence Secretary Jim Mattis said China’s recent militarisation efforts in the disputed South China Sea were intended to intimidate and coerce regional countries.

Mattis told the Shangri-La Dialogue that China’s actions stood in “stark contrast with the openness of [the US] strategy,” and warned of “much larger consequences” if China continued its current approach.

As an “initial response”, China’s navy has been disinvited by the US from the upcoming 2018 Rim of the Pacific Exercise, the world’s largest international naval exercise.

It is important to understand the context of the current tensions, and the strategic stakes for both China and the US.




Read more:
Is China playing a long game in the South China Sea?


In recent years, China has sought to bolster its control over the South China Sea, where a number of claimants have overlapping territorial claims with China, including Vietnam, the Philippines and Taiwan.

China’s efforts have continued unabated, despite rising tensions and international protests. Just recently, China landed a long-range heavy bomber for the first time on an island in the disputed Paracels, and deployed anti-ship and anti-air missile systems to its outposts in the Spratly Islands.

China’s air force has also stepped up its drills and patrols in the skies over the South China Sea.

While China is not the only claimant militarising the disputed region, no one else comes remotely close to the ambition, scale and speed of China’s efforts.

China’s strategy

The South China Sea has long been coveted by China (and others) due to its strategic importance for trade and military power, as well as its abundant resources. According to one estimate, US$3.4 trillion in trade passed through the South China Sea in 2016, representing 21% of the global total.

China’s goal in the South China Sea can be summarised with one word: control.

In order to achieve this, China is undertaking a coordinated, long-term effort to assert its dominance in the region, including the building of artificial islands, civil and military infrastructure, and the deployment of military ships and aircraft to the region.




Read more:
Explainer: what are the legal implications of the South China Sea ruling?


While politicians of other countries such as the US, Philippines and Australia espouse fiery rhetoric to protest China’s actions, Beijing is focusing on actively transforming the physical and power geography of the South China Sea.

In fact, according to the new commander of the US Indo-Pacific Command, Admiral Philip Davidson, China’s efforts have been so successful that it “is now capable of controlling the South China Sea in all scenarios short of war with the US”.

America’s declining relevance

China’s efforts are hard to counter because it has employed an incremental approach to cementing its control in the South China Sea. None of its actions would individually justify a US military response that could escalate to war. In any case, the human and economic cost of such a conflict would be immense.

The inability of the US to respond effectively to China’s moves has eroded its credibility in the region. It has also fed a narrative that the US is not “here to stay” in Asia. If the US is serious about countering China, then Mattis’ rhetoric must be followed by action.

First, the US should clearly articulate its red lines to China and others on the kinds of activities that are unacceptable in the South China Sea. Then it must be willing to enforce such red lines, while being mindful of the risks.

Second, the US needs to renew its efforts to cooperate with allies in the region to build capacity and demonstrate a coordinated commitment to stand in the face of China’s challenge.

Third, the US needs to deploy military capabilities in the Indo-Pacific region, such as advanced missile systems, which would reduce the military advantages gained by China through the militarisation of the South China Sea features.

Long-term consequences

China’s tightening control over the South China Sea is worrying for a number of regional countries. For many, the shipping routes that run through the South China Sea are the bloodlines of their economies.

Moreover, the shifting balance of power will enable Beijing to settle its territorial disputes in the region for good. Without a doubt, China is willing to use its new-found power to change the status quo in its favour, even at the expense of its weaker neighbours.

Control of the South China Sea also allows Beijing to better project its military power across South-East Asia, the western Pacific and parts of Oceania. This would make it more costly for the US and its allies to take action against China, for example, in scenarios involving Taiwan.

On a higher level, China’s assertive approach to the South China Sea demonstrates Beijing’s increasing confidence and its willingness to flaunt international norms that it considers inconvenient or contrary to its interests.

There is little doubt China is becoming the new dominant power in Asia. Its rise has benefited millions in the region and should be welcomed. But we should also be wary of Beijing’s approach to territorial disputes and grievances if it employs military and economic intimidation and coercion.




Read more:
China’s quest for techno-military supremacy


If we want to live in a “world where big fish neither eat nor intimidate the small”, then there must be consequences for countries, including China, when they flaunt international norms and seek to settle disagreements with force.

It may be too late to turn the tide in the South China Sea and reverse China’s gains. No one would run such a risk. But it is not too late to impose penalties on China for further destabilising the region through its actions in the South China Sea.

The ConversationThe challenge is to figure out how to do that, and what we would be willing to risk to achieve it.

Adam Ni, Researcher, Strategic and Defense Studies Centre, Australian National University

This article was originally published on The Conversation. Read the original article.

Australia’s deal with Timor-Leste in peril again over oil and gas



File 20180523 51102 1dz1y7g.jpg?ixlib=rb 1.1
The central element of the Timor Sea dispute seems far from resolved.
AAP/Caroline Berdon

Rebecca Strating, La Trobe University and Clive Schofield, University of Wollongong

In April, Australia and Timor-Leste reached agreement on their maritime boundaries in the Timor Sea. This resolved a longstanding source of contention between them.

The potential benefits of this historic breakthrough are now in peril, because the critical issue of how the shared oil and gas of the Timor Sea are to be developed remains in dispute.

Breakthrough on maritime boundaries

Australia and Timor-Leste’s boundary agreement was achieved thanks to a unique dispute resolution process: the United Nations Compulsory Conciliation Commission. The commission was initiated under the United Nations Convention on the Law of the Sea (UNCLOS).

Because both Australia and Timor are parties to UNCLOS, Timor was able to invoke a compulsory conciliation process. It was the first time this has occurred.

Australia was at first reluctant to engage in the UNCC process. It lost its argument that the commission did not have the competence to negotiate the dispute. Australia did then engage with the process in good faith.

Indeed, the success of the UNCC was in large part due to the willingness of both parties to participate in good faith. A series of “confidence building” measures in 2016 helped build trust between the states.

By January 2017, Australia had agreed to terminate the existing Certain Maritime Agreement on the Timor Sea (CMATS). In return, Timor-Leste dropped two international legal cases it had initiated against Australia.

The process set up a neutral commission to run facilitated negotiations over a year, although sessions ultimately ran from July 2016 to February 2018. While participation in the conciliation was compulsory for the parties, it differed from an arbitration process, such as an international court, because the commission’s recommendations could only be non-binding. A crucial aspect of these facilitated negotiations were the discussion papers that allowed both states to think creatively about solving the dispute.

Ultimately, the process succeeded in its primary aim of helping Australia and Timor-Leste to resolve their long-running dispute in the Timor Sea. The breakthrough came in July 2017, when the countries outlined to the commission the points on which they were willing to compromise.

On August 30, an agreement on maritime boundaries, revenue split and an action plan for their engagement in the joint venture was reached. The maritime boundary treaty was signed on April 6 2018.

Deadlock over downstream developments

On May 9 2018, the commission, to little media fanfare, released its report and recommendations on the conciliation.

The report provides valuable insights into the ongoing disputes over development of the Greater Sunrise complex of gas fields located in the Timor Sea – a critical issue for Timor-Leste’s future economic security and development.

Australia and Timor-Leste asked the UNCC to extend its mandate to include the development concept for Greater Sunrise. This extended the sessions beyond the initial one-year period.

Despite its significant success in helping the states agree on maritime boundaries in the Timor Sea, the report indicates little progress was made on the question of how Greater Sunrise gas would be processed.

Crucially, Timor-Leste’s lead negotiator and newly re-installed prime minister, Xanana Gusmao, has consistently advocated a pipeline to the south coast of Timor-Leste to support the development of a Timorese oil and gas processing hub.

The Sunrise Venture Partners (SVP), led by Woodside, have preferred either a floating platform or, more recently, back-filling an existing processing plant in Darwin. Australia, for its part, describes itself as “pipeline neutral”, but supports the decision of the commercial venture partners.

To address this issue, the SVP was invited to participate in the commission process. The report suggests very little progress has been made between the three parties – Australia, Timor-Leste and the SVP – on this dispute.

The commission considered two development concepts, based in Darwin and Timor Leste respectively. According to Gusmao, the pipeline to Timor-Leste is “non-negotiable”. Yet, there is little impartial evidence that this concept would be commercially viable.

In an effort to find a way out of the impasse, the commission employed an independent consultant from a London-based firm, Gaffney, Cline & Associates, to comparatively analyse the two development concepts. The specialist’s assessment, provided in Annexe 27 of the report, said that for a Timorese processing hub to achieve an acceptable return, the Timorese government or another funder would have to subsidise the project to the tune of US$5.6 billion. This is about four times Timor-Leste’s annual GDP, or more than one-third of its Petroleum Wealth Fund.

A letter from Gusmao leaked to the commission in February 2018 – after the last round of UNCC meetings – accused the commission of lacking impartiality, preferring the Darwin concept to the Timor-Leste concept.




Read more:
What’s behind Timor-Leste terminating its maritime treaty with Australia


The letter also rejected the comparative analysis provided by the independent expert. It accused the technical expert of not having the “appropriate experience or understanding from working in Timor-Leste” and of having failed to consider the socioeconomic development benefits of the Timorese proposal.

In contrast, the commission’s report noted that Gaffney, Cline & Associates had previously worked for Timor-Leste, but that Australia had not objected to the appointment.

The report suggests that the three parties – Australia, Timor-Leste and the SVP – are no closer to agreement on how to process Greater Sunrise gas.

A looming threat to Timor-Leste’s development

The need to resolve the development issue is increasingly urgent. Timor-Leste is rapidly running out of revenue and development options. Over 90% of its annual budget comes from revenues from oil fields that are expected to be depleted within the next five years. Economically, Timor-Leste does not appear to have a plan B if its strategy for bringing gas to the southern shores of Timor-Leste fails.

Given its precarious situation, one might wonder why Timor-Leste is taking what appears to be a risky approach to this issue, and about what kind of agreements it has sought with other actors or states. In any case, the central element of the Timor Sea dispute seems far from resolved.

The Conversation

Rebecca Strating, Lecturer in Politics, La Trobe University and Clive Schofield, Professor and Challenge Lead, Sustaining Coastal and Marine Zones, University of Wollongong

This article was originally published on The Conversation. Read the original article.

For Timor-Leste, another election and hopes for an end to crippling deadlock


Jerry Courvisanos, Federation University Australia

For the last year, the people of Timor-Leste have expected – and received – little from their government except deadlock.

From a political standpoint, there’s been gridlock for nearly a year after the Fretilin party eked out a victory in parliamentary elections last July, kicking independence hero Xanana Gusmao’s National Congress for Timorese Reconstruction (CNRT) party out of power for the first time in a decade.

However, Fretilin’s minority government found itself blocked at every turn by CNRT and its allies. It finally collapsed in December, forcing the beleaguered president to call for new elections, to be held on Saturday.

At the same time, there’s been economic deadlock, as well. The vast riches of the oil and gas fields in the Timor Sea have been locked away due to Timor-Leste’s seemingly intractable negotiations with the Australian government over a disputed maritime boundary.




Read more:
Australia should help East Timor feed itself


In March, a boundary treaty was finally signed between the countries, which could lead to billions in royalties for Timor-Leste. But disagreements remain on how to develop the untapped Greater Sunrise basin that lies across this boundary.

In the past, Timor-Leste governments have focused on a “big development” economic strategy to exploit the country’s limited fossil fuels, which José Ramos Horta, the Noble Peace Prize laureate and former president and prime minister, has called “an absolute necessity for the future well-being of this country”.

The recent political impasse has put serious discussions about the future of the country on hold. For starters, the tenor in the run-up to the election has been acrimonious and personal, with the leaders of each party trading insults and playing up their contributions to the war of independence against Indonesia instead of debating policy.

Candidates have focused their campaigns on voting for the best “fatherly” figure of the revolution, with little regard for the country’s youth, who suffer from high unemployment rates and have largely been marginalised from the political process.

The economic development of the country, meanwhile, has been left out of the debate. The candidates all stress the need for “big resource development” and the need to build massively expensive gas processing infrastructure on the south coast of the country. But what’s lacking is any indication of whether gas can (or will) be developed in the long term by any multinational gas producer.

Also lacking is any real discussion about the future of the economy and how best to wean the country off its reliance on fossil fuels to drive economic growth. This has long been seen as a risky and unsustainable strategy.

Based on my own research in the country, as well as the work of other academics and development experts, the new Timor-Leste government will need to take a different strategy more in line with the [United Nations’ Sustainable Development Goals], encouraging private investment and developing non-oil exports in agriculture, community forestry and coffee exports. Timor-Leste has committed itself to these SDGs, even if it is struggling to meet them.




Read more:
From violent occupation to adventure vacation – can tourism work in Timor?


According to tradition, a sacred house in Timor-Leste is formed by four pillars. If two of those pillars are in a sloping position or broken, it will impact the house as a whole. When that happens, the elders will ask the young people to find new pillars to replace the ones that are damaged.

Timor-Leste now finds itself with two broken pillars – the leadership of the country and the dysfunctional parliament. The situation requires the attention of all Timorese to help fix the broken pillars and right the country.

The big question is whether the politicians who are elected on Saturday will listen to the people and bring an end to the deadlock holding the country back.

The ConversationI would like to acknowledge the contribution made to my article by Victor Soares, Lecturer in Public Policy, Universidade Nacional Timor Lorosa’e (UNTL), Dili

Jerry Courvisanos, Associate Professor of Innovation and Entrepreneurship, Federation University Australia

This article was originally published on The Conversation. Read the original article.

Australia and Timor Leste settle maritime boundary after 45 years of bickering



File 20180307 146661 yiatqo.jpg?ixlib=rb 1.1
After nearly two years of a facilitated conciliation process, Australia and Timor Leste have finally reached agreement on a maritime boundary in the Timor Sea.
Shutterstock

Donald R. Rothwell, Australian National University

After nearly two years of a facilitated conciliation process initiated under the 1982 United Nations Convention on the Law of the Sea, Australia and Timor Leste have finally reached agreement on a maritime boundary in the Timor Sea.

The treaty, signed at the UN in New York by Australian Foreign Minister Julie Bishop and Agio Pereira for Timor, will enter into force once all relevant domestic processes have been completed in Canberra and Dili.

This is the latest development in the saga of the Timor Sea, which has been contested for more than 45 years by Australia, Portugal, Indonesia and Timor Leste.

Ownership and control of significant oil and gas reserves, some of which remain undeveloped, are at the centre of the dispute. This partly explains why, despite previous treaties, there has never been a conclusive settlement of the maritime boundary.




Read more:
Australia and Timor Leste reach a deal on the Timor Sea – but much remains unknown


The 2018 treaty seeks to permanently settle the Australia/Timor Leste maritime boundary, albeit with the potential for future adjustments subject to negotiations between Timor and Indonesia.

A long time coming

Since the 1970s, Australia has been engaged in negotiations first with Portugal, then Indonesia, and finally Timor Leste over the maritime boundary. Portugal rebuffed Australian approaches in the early 1970s, mindful of developments in maritime law that promised them a better deal.

Indonesia, which occupied Timor from 1975, was more willing to negotiate. A joint development zone was agreed on that broadly shared oil and gas revenue on a 50/50 basis, but set aside a permanent maritime boundary for future settlement.

That arrangement collapsed following Indonesia’s 1999 withdrawal from Timor, and was replaced in 2002 by the Timor Sea Treaty between Australia and the newly independent Timor Leste.

However, the Timor Sea Treaty was again based on a joint development regime –though with a 90/10 revenue split in favour of Timor – and negotiations on a permanent maritime boundary were set aside for up to 40 years.

The treaty also did not satisfactorily deal with the Greater Sunrise oil and gas field in the north east quadrant. While a subsequent 2003 unitisation agreement sought to provide some commercial certainty for the multinationals wanting to develop the field, Dili remained firmly of the view that it was getting a bad deal.

In particular, the generation of Timor’s leaders who led its independence movement placed great importance on the new country having settled land and maritime borders. That the Timor Sea boundary with Australia was not settled remained contentious in Dili. The situation was exacerbated by allegations of Australian spying during treaty negotiations and a Greater Sunrise revenue split that favoured Australia.

Key features

The 2018 treaty contains six prominent features. First, it provides for a southern boundary between Timor Leste and Australia that approximates a mid-way between relevant coastal features. This is consistent with the modern law of the sea.

Second, there is a straight line western lateral boundary that runs from the western terminus of the 1972 Australian Indonesian Seabed Boundary south to the median line.

The new maritime boundary between Australia and Timor Leste.
Department of Foreign Affairs and Trade

Third, the eastern lateral boundary comprises a number of segments that extend much further to the east and north east than the 2002 treaty, ultimately giving Timor Leste much greater entitlements over the Greater Sunrise field.

Fourth, a Greater Sunrise Special Regime is created in which the two countries agree to share the upstream revenue either on a 80/20 basis in favour of Timor, if processing occurs by way of a pipeline to an Australian LNG processing plant, or 70/30 in favour of Timor if a pipeline runs to Timor.

Fifth, Timor gains 100% access to the future upstream revenue of the existing oil and gas fields that were previously part of the 2002 Joint Petroleum Development Area.




Read more:
What’s behind Timor-Leste terminating its maritime treaty with Australia


Finally, taking into account these new arrangements will ultimately need to accommodate any maritime boundaries that Timor may negotiate with Indonesia, there is some capacity for adjustment of the eastern and western lateral boundary lines, though only after the commercial depletion of seabed resources in the area.

Unique, but still unresolved

The conciliation process has yielded a unique treaty. It is the first of its type that not only involved the two states, but also the Greater Sunrise Joint Venture partners, including Woodside, Conoco Phillips, Shell, and Osaka Gas.

Timor initiated the conciliation, engaging an independent third party in an effort to break the maritime boundary impasse. It succeeded in getting Australia to abandon its long held opposition to a permanent Timor Sea maritime boundary, and has been able to substantially modify the development regime for Greater Sunrise.

The ConversationNotwithstanding these achievements, some matters remain unresolved, including the location of the LNG processing plant. Whether the plant is located in Australia or Timor is ultimately a commercial decision, but could become the source of ongoing bickering given the significant downstream benefits at stake and implications for Timor’s economic future.

Donald R. Rothwell, Professor, ANU College of Law, Australian National University

This article was originally published on The Conversation. Read the original article.