Spying to obtain confidential and privileged information in order to gain advantage in treaty negotiations is deceitful behaviour. The definition of fraud in international law includes deliberately deceitful behaviour in the formation of an international agreement. If the recent media reports are accurate that Australia bugged the Cabinet room of the Timor-Leste government when the CMATS treaty was being negotiated, then this treaty, related instruments, and the extension of the TST may be invalid under the law of treaties or voidable under general international law on three separate grounds explained below.įirst, as a matter of treaty law, under Article 49 of the Vienna Convention on the Law of Treaties (VCLT), to which both Australia and Timor-Leste are party, a state that is induced to conclude a treaty by the fraudulent conduct of a negotiating state may invoke the fraud to invalidate its consent to be bound by the treaty. The bases of Timor-Lesteâs claims against Australia are unknown because these proceedings are confidential. Presumably Timor-Leste is arguing that the 2004 CMATS treaty negotiations were taking place as part of an ongoing commercial joint venture created by the TST and associated instruments. At first blush this would seem to pose significant jurisdictional hurdles because dispute settlement under the CMATS treaty is limited to consultation or negotiation. While Timor-Leste is blocked from action in the ICJ and under the LOSC, it has invoked the TST dispute settlement provisions to challenge its own consent to the CMATS treaty. The Arbitration Between Timor-Leste and Australia The immediate point of contention, though, is the way in which Timor-Lesteâs consent to the CMATS treaty was apparently procured. Significantly, it also establishes a moratorium on claims to sovereign rights and jurisdiction and maritime boundaries for the period of the treaty and excuses the parties from any obligation to negotiate in good faith over permanent boundaries until 2057. The treaty is also notable for its duration until 2057 and its extension of the TST until 2057. While this revenue-sharing arrangement is more generous than before, Australia has worked to ensure that refining operations (where the real money and economic development is) are carried out in Darwin, Australia. The CMATS treaty provides for an equal share for Timor-Leste and Australia of the revenue derived from upstream exploitation of petroleum from the Greater Sunrise deposits. ĭue to Timorese dissatisfaction with these lopsided arrangements, the CMATS treaty was negotiated to govern the revenue split between Timor-Leste and Australia over exploitation of the Greater Sunrise deposit. Under the new arrangements, the largest known petroleum deposits, collectively known as "Greater Sunrise," were apportioned so that Australia received nearly eighty-two per cent of the total resource, leaving newly independent and impoverished Timor-Leste with roughly eighteen percent. On the day of Timorese independence, Australia and Timor-Leste entered into the Timor Sea Treaty (TST), followed by a number of related instruments over the next year. While couched in broad language, these reservations were clearly intended to preclude Timor-Leste from bringing a claim against Australia over the disputed area. This maritime boundary dispute cannot be settled in the International Court of Justice (ICJ) or under the dispute settlement provisions of the United Nations Law of the Sea Convention (LOSC) because shortly before Timorese independence, Australia lodged new reservations to jurisdiction in its declarations in the ICJ and under the LOSC. Timor-Leste claims that espionage carried out by Australia during the course of CMATS treaty negotiations has vitiated the agreement. It is a history bound up in the arbitral dispute that Timor-Leste instituted on April 23, 2013, in which it seeks to have the 2006 Treaty with the Government of the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS treaty) declared invalid or void. The dispute between Australia and Timor-Leste (often called East Timor) over resources in the non-delimited marine area between their coastlines known as the âTimor gapâ has a long history that predates Timorese independence.
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