Now you CMATS, now you don’t
Dr Mark Byrne*
Published at New
On Friday 23 February the Certain Maritime Arrangements in the
Timor Sea (CMATS) treaty between Australia and East Timor came into
There are two dubious aspects to this treaty. The first is the
substance. It requires Timor-Leste to suspend the resolution of
its maritime boundary with Australia for 50 years in order to receive
a 50:50 split of revenue from the Greater Sunrise field.
The United Nations Convention on the Law of the Sea (UNCLOS) and
subsequent jurisprudence before the International Court of Justice
(ICJ) has established that the median line principle is to be applied
in the resolution of maritime boundary disputes. Even were the continental
shelf principle to be applied, as the Australian Government has
argued, there is doubt as to whether the Timor Trough actually constitutes
the edge of the Australian continental shelf, or whether it extends
to the north of the island of Timor.
Under the median line principle Timor-Leste would be entitled to
about 90 per cent of the royalties from the Greater Sunrise field.
The Australian Government withdrew from the jurisdiction of the
ICJ in relation to maritime boundary disputes in 2002 in order to
prevent the new nation of Timor-Leste from taking Australia to the
ICJ to resolve this issue.
This amounts to a windfall to Australia of between four and ten
billion dollars at current estimates of the field’s value
over its lifespan. As others have pointed out, this effectively
makes Timor-Leste, one of the poorest nations in the world, the
largest donor of foreign aid to Australia, one of the wealthiest
Then there is the ratification process. The current Federal Government
reformed the treaty-making process in 1996 in order to correct what
Mr Downer called at the time “a democratic deficit.”
The Joint Standing Committee on Treaties (JSCT), which was created
as a result of those reforms, was in the process of reviewing the
CMATS treaty. Submissions were to be accepted until March 16 and
there had already been one day of public hearings.
The review process was derailed when the government invoked the
national interest exemption last week. This exemption has only been
invoked in the past when there has been an urgent need to, say,
put Australian Federal Police into South Pacific nations in a hurry.
Even when that has happened, the government has announced in advance
that it intends to seek an exemption. There was no such need or
prior announcement in this case.
Also, the reforms committed the government to table treaties at
least fifteen joint sitting days prior to taking action to bring
them into force. In the case of the CMATS treaty, that would have
meant waiting until mid June instead of jumping the gun last week.
Why bother going through the motions of a parliamentary review if
you don’t care about the process or the outcome?
The fact that the timing suited the East Timorese Government and
that the Parliament of East Timor passed the treaty last week are
no excuses. It has aroused considerable opposition in civil society
there. Opponents argue that it represents a poor deal financially
and that the people of Timor-Leste are entitled to negotiate their
territorial boundaries without the threat of economic blackmail
from their rich and powerful neighbour.
Independent of East Timorese politics, it is important that Australia
maintains and enhances democratic input into the treaty-making process,
which is weak enough already by international standards. In the
United States, for instance, the Senate has the power to approve
or reject treaties negotiated by the executive branch. The need
for a two-thirds majority ensures bipartisan support. This is in
contrast to JSCT reviews in Australia, where the government dominates
a committee which has no power to amend or reject treaties, and
no major treaty has ever been rejected or even amended substantially
The treaty was discussed on February 28 in passing as the related
Offshore Petroleum Amendment (Greater Sunrise) Bill 2007 was being
debated in parliament. While other members were more interested
in the economic benefits to Australia generally, and the Northern
Territory economy in particular, only the tireless Peter Andren,
independent member for Calare (NSW), spoke up for the East Timorese
With this treaty and this bill, we have pushed a poor developing
nation... into giving up half of its rightful claim to revenue
from the natural resources that will ensure its future development
for decades to come. Indeed, it is not too long a bow to draw
to say that the deal that has been struck is instrumental in fomenting
the current situation in Timor-Leste—the feeling of mistrust
and of having been let down, and the feeling that they are being
overlorded by a new colonial master in this whole process.
The CMATS treaty is morally indefensible, and the government’s
cavalier treatment of the ratification process represents one more
small nail in the now very leaden coffin of Australian democracy.
Dr Mark Byrne is Senior Researcher at Uniya Jesuit Social Justice
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