2.1
The inquiry's terms of reference ask the committee to consider the question of whether Australia's 2002 declarations under the United Nations Convention on the Law of the Sea (UNCLOS) and the Statute of the International Court of Justice 1945 (ICJ Statute) should be revoked, and new declarations made which submit maritime delimitation disputes to the jurisdiction of the ICJ or the International Tribunal for the Law of the Sea (ITLOS).
2.2
In addressing this question, submitters and witnesses raised several key issues, namely:
whether Australia's 2002 UNCLOS and ICJ Statute declarations were consistent with broadly accepted practice in the international community;
the policy reasoning and motivations behind the declarations and their timing;
the effects of the declarations on Australia's subsequent maritime boundary negotiations and general relations with Timor-Leste; and
the potential practical and/or symbolic effects of withdrawing and replacing the declarations.
Use of declarations by signatories to the UNCLOS and the ICJ Statute
2.3
Submitters and witnesses presented differing views on whether Australia's 2002 declarations represented a normal course of action for a state to pursue under international law, or whether they represented exceptional and potentially unfair actions taken by a state in order to protect its interests.
2.4
Professor Donald Rothwell and Ms Katherine Arditto of the ANU College of Law submitted that Australia’s 2002 declarations 'are consistent with international law and Australia’s entitlements as a sovereign state to be subject to various forms of compulsory dispute settlement'.
2.5
The Department of Foreign Affairs and Trade (DFAT) submitted that it is 'common practice for States to make a declaration to clarify the meaning and scope of a multilateral treaty or specific provisions'. Mr James Larsen, Chief Legal Officer at DFAT, told the committee:
Australia has a strong and deserved reputation for supporting the international rule of law. Australia's declarations are fully consistent with international law, including the [UNCLOS] and the Statute of the [ICJ].
Australia continues to accept the compulsory jurisdiction of the [ICJ] and is in fact amongst a minority of states to do so. Only 74 out of a total of 193 states have accepted the compulsory jurisdiction of the International Court of Justice.
2.6
It was noted that 50 out of the 74 states that have accepted the compulsory jurisdiction of the ICJ have made declarations limiting that jurisdiction. DFAT submitted:
Like most countries accepting the compulsory jurisdiction to the ICJ—including the United Kingdom, Canada and New Zealand—Australia does so with limitations. Eight countries have made a reservation to the ICJ statue specifically regarding maritime boundaries including Germany, India and Malta.
2.7
In relation to Australia's UNCLOS declarations, DFAT stated that 'many other countries have made similar declarations…including, Canada, China, France, Mexico, Portugal, Republic of Korea, Singapore and Thailand'.
2.8
Professor Clinton Fernandes, Professor of International and Political Studies at the University of New South Wales, disagreed that Australia's position was similar to many other nations who have made declarations under the UNCLOS and the ICJ Statute:
The reality is that of the 21 States that made declarations under Article 298(1)(a) of [the UNCLOS], only nine also made declarations under Article 36(2) of the ICJ Statute. And out of these nine, only Australia explicitly excluded sea boundary delimitation disputes from the jurisdiction of the ICJ.
…No other country had made both declarations and furthermore explicitly excluded sea boundary delimitation disputes.
2.9
When questioned on how the declarations made by States limiting their acceptance of compulsory ICJ jurisdiction are structured, Mr Larsen from DFAT commented:
I'd say that that there would obviously be similarities, but each state's declaration will reflect its particular circumstances. Of course, both UNCLOS and the Statute of the [ICJ] expressly contemplate such arrangements, so we would strongly put the position that what Australia is doing is utterly unremarkable and a perfectly conventional way to protect our interests and make sure that we manage dispute resolution processes in ways which reflect our particular circumstances.
Rationale for the 2002 declarations and their timing
2.10
Submitters and witnesses commented in some detail on the motivations behind, and the timing of, Australia's 2002 declarations.
2.11
As noted in Chapter 1, the rationale articulated by the Australian Government in the National Interest Analysis (NIA) published at the time of the UNCLOS declaration in 2002 is as follows:
The Government's view is that maritime boundary disputes are best resolved through negotiation, not litigation. Negotiations allow the parties to work together to reach an outcome acceptable to both sides. The Government is, and remains, committed to the peaceful settlement of disputes. Compared to other countries, Australia, as an island continent, has some of the longest maritime boundaries in the world. It has maritime boundaries with many countries and the Government is concerned that every endeavour should be made to reach an agreed resolution of any maritime boundary disputes through peaceful negotiation.
2.12
DFAT reiterated this view in its submission to the committee's inquiry:
DFAT's view is that negotiations are more likely to produce better resolutions to maritime boundary disputes. Boundaries are fundamental elements of sovereignty and statehood; as a result many States have excluded these matters from dispute resolution procedures. A negotiated boundary settlement with a neighbour is more likely to result in an enduring and respected boundary that provides certainty for the parties and all stakeholders.
2.13
At the committee's public hearing in Canberra, Mr Larsen from DFAT told the committee that the department had nothing further to add to the public record to explain the specific motivations of the Australian Government in making the declarations when it did, beyond what was stated in the National Interest Analysis tabled at the time in 2002 and contemporaneous statements by Ministers.
2.14
Professor Rothwell and Ms Arditto commented on the rationale behind the 2002 declarations as follows:
The 2002 declaration reflected Australia’s desire to resolve maritime boundary disputes through negotiation. At that time, Australia was in active negotiations over maritime boundary delimitation with New Zealand and Timor-Leste and was concerned about possible disputes over Antarctic maritime boundaries with Norway, France and New Zealand. Within this context, Australia drafted the reservation in broad language so as to cover all the potentially associated disputes that could arise in a delimitation situation as between the parties to the delimitation.
2.15
Some submitters questioned the government's stated rationale that maritime boundary disputes are best resolved by bilateral negotiations rather than through litigation. Professor A.L. Serdy, Professor of the Public International Law of the Sea at the University of Southampton, described the justification provided in the NIA as 'threadbare', and commented:
This [argument] is unconvincing, not because it is wrong, but because exactly the same could be said of all international legal disputes, not just those concerning maritime boundaries; litigation should in principle always be a last resort. Yet no explanation was put forward in [the NIA] or any other document as to why maritime boundaries were uniquely unsuitable to litigation, even as a last resort.
2.16
Professor Fernandes argued similarly in evidence to the committee:
Negotiations are always the preferred way of solving a dispute. It's not as though maritime boundary disputes are so complex that they are uniquely unsuitable for litigation. No, what happened here is we tried to exempt ourselves only from maritime boundary delimitation. We were still able to take Japan to the International Court of Justice on whaling. We didn't believe in limiting ourselves to only negotiations on whaling… It's only in the case of seabed boundary delimitation that we said, 'No, we aren't going to go to court.' That, to me, indicates that we are trying to block Timor from asserting its rights under international law.
2.17
Several submitters asserted that the timing of the declarations, coming eight years after Australia had ratified the UNCLOS treaty, as well as Australia's decision not to announce their intentions to make such declarations before doing so, indicated that the declarations were clearly made with the intention of preventing Timor-Leste from achieving a swift and equitable resolution to the Timor Sea maritime boundary upon it gaining independence from Indonesia. For example, the Timor Sea Justice Campaign submitted:
The Australian Government's withdrawal of recognition happened just two months before Timor-Leste became an independent nation, knowing that the Timorese would want to negotiate—as is their right—permanent maritime boundaries with their neighbours in accordance with international law.
The withdrawal meant the Government of Timor-Leste had limited avenues to challenge the Australian Government’s attempts to stonewall its requests to establish permanent maritime boundaries or challenge Australia’s unilateral depletion of contested resources.
Turning your back on the independent umpire is a pretty clear sign that you do not intend to play by the rules. The Australian Government shunned international law and bullied its way into a series of temporary resource sharing arrangements that significantly short-changed Timor‑Leste.
2.18
La'o Hamutuk, the Timor-Leste Institute for Development Monitoring and Analysis, submitted:
In March 2002, Australia unilaterally withdrew from international mechanisms for resolving maritime boundary disputes under UNCLOS and the [ICJ]. At that time, Australia was worried that a binding, impartial, third-party ruling might not allow it to continue to take resources from territory which Australia now acknowledges belongs to Timor-Leste. Australia demonstrated how a large nation could violate the sovereign rights of a small neighbour, rejecting international mechanisms in favour of inherently unequal bilateral negotiations.
Effect of the declarations on maritime boundary negotiations and general relations with Timor-Leste
2.19
Submitters discussed whether Australia's 2002 declarations had materially affected subsequent maritime boundary negotiations with Timor-Leste, as well as the impact on broader bilateral relations between the two countries.
2.20
Professor Rothwell and Ms Arditto argued that Australia's 2002 declarations have not had the effect of removing other states' ability to pursue international legal proceedings against Australia:
There is no evidence that other States have been completely barred from commencing international legal proceedings against Australia in the ICJ as is evidenced by Timor-Leste commencing proceedings against Australia in the 2014 Documents and Data case. Likewise, notwithstanding Australia’s Article 36(2) ICJ declaration and Article 298 UNCLOS declaration, Timor‑Leste was able to commence compulsory conciliation proceedings against Australia in reliance upon Article 298(1)(a) which facilitated the negotiation of the 2018 Timor Sea Treaty.
2.21
Professor Fernandes contested these points, arguing that: the 2014 Documents and Data case was not a case about maritime boundary delimitation, and 'therefore completely irrelevant' to the committee’s inquiry; and furthermore that Australia resisted Timor-Leste's attempts to commence compulsory conciliation, and only submitted to those proceedings after it had challenged the jurisdiction of the Compulsory Conciliation Commission and lost.
2.22
The Timor Sea Justice Forum submitted that Australia's withdrawal from the jurisdiction of ITLOS and the ICJ and the events which flowed from that decision 'have had detrimental effects on the nation of Timor-Leste, on Australia’s standing with other nations, on Australia’s regional reputation, and on Australians themselves':
The Timorese government and people have had to spend inordinate amounts of time, effort and money opposing the Australian determination to grasp as much revenue from the Timor Sea as possible. Instead of receiving comprehensive and genuine good faith support from Australian governments, the Timorese have had to devote their diplomatic and financial structures to protect their sovereign maritime rights.
2.23
Professor Fernandes argued that the issue of Australia's 2002 declarations and subsequent difficulties in maritime boundary negotiations had severely impacted the bilateral relationship between Australia and Timor-Leste:
[This issue] just dogged the bilateral relationship for 16 years. It dogged the whole bilateral relationship. Timor was basically forced into one temporary revenue sharing agreement after the next. From the Timor Sea treaty to a treaty in 2005 to the International Unitisation Agreement. Then the CMATS, certain maritime arrangements in the Timor Sea 2007. Then there was another epic after that, which was the entire allegations of espionage and International Court of Justice proceedings to recover documents that were seized. The whole thing could have been avoided had we simply said, 'Timor, you have the right to take us to court if you believe that you have a good case. We believe in the rules based international order. Take us to court if you believe you have a good case.' If they win, they win. If they lose, they lose. That way the burden, or the blame for their loss, would have rested on the neutral umpire, the [ICJ], not on the Australian government. Sixty five per cent of Timor's population is under the age of 21. They remember this. This is not a good look for us.
2.24
La'o Hamutuk submitted that the outcome achieved through the 2018 Timor Sea Treaty 'could have been accomplished sooner and more fairly if Australia had accepted a process of third-party arbitration or judicial decision under international law'.
2.25
Professor Serdy commented:
[T]the 2002 declarations were poor legal policy: by giving Australia a false sense of security in relation to Timor-Leste, they allowed political tensions related to the boundary to fester to such a degree that their resolution by the…2018 treaty ultimately required much greater concessions than the most unfavourable outcome conceivable had the boundary instead been adjudicated on Timor-Leste's unilateral application by the ICJ or under UNCLOS dispute settlement.
2.26
Mr Larsen of DFAT maintained that negotiations, ultimately through the Compulsory Conciliation Committee, had produced a successful outcome in resolving the Timor Sea maritime boundary:
If you look at the history of the conciliation process that produced the treaty that is now in force between Australia and Timor-Leste, that reinforces our very firm view that the most appropriate way to resolve maritime boundary disputes or boundary disputes of any sort is by negotiation and then having a negotiated process. That really was the critical achievement of the conciliation process. In effect, it brought two parties, which were very much at odds with each other in relation to a very wide variety of matters, to a position where they were able, sensibly, to negotiate an arrangement that was mutually acceptable. Insofar as that arrangement deals with previous arrangements, that reflects where the party's landed as a consequence of the negotiation. I think the evidence supports the view that the end result is highly satisfactory for all sides.
2.27
DFAT representatives argued that events around the conclusion of the 2018 treaty and the 20th anniversary of Timor-Leste's vote for independence in 2019 have 'laid the groundwork for a positive transformation of the relationship' between Australia and Timor-Leste.
Potential effects of revoking Australia's 2002 declarations
2.28
A number of submitters argued that Australia should withdraw its declarations made under Article 298 of UNCLOS and Article 36(2) of the ICJ Statute and replace them with new declarations which submit maritime boundary disputes to the jurisdiction of the ICJ or ITLOS without reservation.
2.29
Submitters noted that withdrawing Australia's 2002 declarations is unlikely to have a practical impact on future maritime boundary negotiations; arguments for withdrawing the declarations were primarily centred around the symbolic effect that this could have in acknowledging a perceived historic wrong and enhancing Australia's international standing.
Practical impact of revoking Australia's declarations
2.30
Professor Serdy noted that, with a treaty delimiting Australia's maritime boundary with Timor-Leste having been settled, very few of Australia's other maritime boundaries remain undelimited. Professor Serdy argued that for this reason, the declarations under UNCLOS Article 298 and ICJ Statute Article 36 'are now largely of historical interest only'. This view was echoed by Professor Fernandes.
2.31
Professor Rothwell noted that there was one outstanding issue relating to Australia's maritime boundaries that could still prove consequential:
There is an interesting outstanding issue in terms of the so-called Perth treaty between Australia and Indonesia. It was negotiated [in 1997]. It is yet to enter into force, because Indonesia has yet to ratify that treaty. If Indonesia were to say to Australia, 'Look, we're not going to ratify that treaty and, rather, we'd like to go back and renegotiate it,' that would throw a significant spanner in the works in terms of Australia's maritime boundary arrangements with Indonesia in that part of the Indian Ocean. So that's a very significant maritime boundary issue that remains outstanding.
Effect on Australia's international standing
2.32
Some submitters argued that resubmitting fully to the jurisdiction of the ICJ and ITLOS in relation to maritime boundary disputes would enhance Australia's standing in the international community. For example, the Hon Steve Bracks AC submitted that revoking Australia's 2002 declarations 'would send a signal to the world that Australia is a cooperative global citizen and a willing participant in the international rules-based order'.
2.33
The Timor Sea Justice Campaign submitted similarly:
Because the Australian Government still does not recognise the full jurisdiction of the [ICJ] and the [ITLOS], Australian foreign ministers continue to have a serious credibility gap when they call on countries, like China, to follow international maritime law and heed various court rulings, when we ourselves do not fully recognise those same courts.
Respect for international law and the role of independent arbitration in settling disputes between countries is vital for Australia's security and reputation. We therefore urge the Committee to recommend that the Australian Government immediately resubmit its recognition to the complete jurisdiction of the [ICJ] and the [ITLOS].
2.34
Professor Serdy submitted that 'the case for retention of the declarations is…weak, even though in practice it is too late for anything significant to be achieved by withdrawing them':
[W]ithdrawal or amendment of these declarations would in reality change very little. That said, it would be a welcome acknowledgement nonetheless that the 2002 declarations were poor legal policy[.]
2.35
Professor Serdy commented further at the committee's public hearing:
I certainly wouldn't oppose withdrawing the declaration. In fact, I'd be quite happy to see it happen. I'd just caution, though, that it wouldn't actually achieve anything concrete. It would really be just of symbolic value. It would be to say, we made a mistake in 2002 and we're sorry and we won't do it again.
Senator PATRICK: All right. But do you think it would give us additional standing in the context of the rule based order regime or philosophy that we purportedly aspire to?
Prof. Serdy: I think it would certainly do no harm in that regard, and it might do a little bit of good. I wouldn't expect too much of it, though. Otherwise, I'd be more enthusiastic.
2.36
When questioned whether Australia's 2002 declarations may make it more difficult for Australia to maintain that it fully respects the rules-based international order and encourage other states to do the same, Mr Larsen of DFAT responded:
I wouldn't concede that. I think that the declarations that have been made by Australia are perfectly proper. They reflect our particular circumstances. They have been in place for a considerable period of time. Since they've been in place, we have had a very satisfactory negotiation with Timor-Leste to resolve our maritime boundary with Timor-Leste. So, no, I would not accept the proposition that those declarations in any way undermine Australia's standing in relation to the rules based order. Indeed, I think the capacity effectively to have arrangements which foreshadow how you will engage with other states in relation to disputed matters underscores our integrity as a nation.
2.37
On the specific issue of whether Australia's 2002 declarations should be withdrawn, Mr Larsen commented:
Ultimately, that is a decision for a government at the political level. My recommendation would be not to withdraw those declarations.
Senator PATRICK: And you'd make that recommendation because—
Mr Larsen: For the rationale that has been given consistently in relation to them: that certainly the view of the Department of Foreign Affairs and Trade is that these boundary delimitation matters are better resolved through negotiation rather than litigation.
Committee view
2.38
This inquiry has considered the question of whether Australia's 2002 declarations under the United Nations Convention on the Law of the Sea (UNCLOS) and the Statute of the International Court of Justice 1945 (ICJ Statute) should be revoked, and new declarations made which submit maritime delimitation disputes to the jurisdiction of the ICJ or the International Tribunal for the Law of the Sea (ITLOS).
2.39
The committee notes that, with the conclusion of the 2018 Maritime Boundaries Treaty between Australia and Timor-Leste, a historic agreement has been reached which brings to an end over 40 years of uncertainty over our shared maritime border. This agreement, which has been welcomed by all parties, provides an equitable outcome for Timor‑Leste and Australia and gives certainty around arrangements into the future, including mechanisms for resolving ongoing issues.
2.40
The committee heard that, now this treaty has been formalised, the prospects of Australia having to undertake significant maritime boundary negotiations with other nations in the future are remote. In this context, the committee agrees with submitters and witnesses who gave evidence that Australia's 2002 declarations are now largely of historical interest only.
2.41
Given that revoking these declarations would appear to have negligible practical impact, the committee considers that such a revocation should not be advanced at this time.
Senator Kimberley Kitching
Chair