Friday, January 13, 2006

East Timor and Justice

This week Australia and East Timor signed a treaty providing for a temporary resolution to negotiations over the oilfields in the Timor Gap.

East Timor (Timor Leste) attained independence in 2002. Since that time it has been negotiating with its neighbours for the establishment of permanent maritime boundaries. The disputed area is rich in oil: in particular the Golden Sunrise oilfield promises oil deposits worth many billions of dollars.

The map below shows the relevant areas of the Timor Sea.

The diplomatic history of the disputed areas is rather complex. (The flash presentation at the top right of this page makes it quite clear.) Suffice to say that Australia currently recieves oil royalties from the exploitation of resources in the the Joint Petroleum Development Area, under a temporary agreement signed by the two countries in 2002 on the day East Timor became a country.

The new agreement signed this week still does not permanently resolve East Timor's maritime boundaries. Instead it provides that "each country will take half the revenue from the Greater Sunrise Field and any negotiations on maritime boundaries will be postponed for up to 50 years." [source] The deal to split the revenues 50/50 makes for a good soundbite; out of context it sounds fair. But one can only assume that substantive fairness was never the principle guiding Mssrs. Howard and Downer. The original offer made by Australia was that East Timor should receive 18% of royalties. And in any case, the 50% that it will now receive is 50% less than that which, according to the prevailing view on the applicable international law, East Timor ought to receive. International law does envisage a 50/50 split, one achieved by drawing a line at an equal distance from the mainland coasts of both countries. All of the disputed areas, to which Australia has now succeded in making claims lie on the East Timor side of the line. Even if international law is taken as the baseline of fairness, this should be enough to put the lie to Howard's rhetoric. On Thursday he said that

"there's great affection in Australia for East Timor, there's great sympathy for the people of East Timor, there is a great desire on the part of the people of Australia that the people of East Timor have a strong secure future." [source]

But the words ring even more hollowly when one recognizes that the budget of the East Timor government stands at about U.S. $80 per capita, that of Australia's government at $10 000. Or should that make no difference?

The answer to the question depends on the concept of justice. It's a notion that both sides to this debate have been claiming for their own. Some of the critics of the Howard government have gathered togeether under the banner of the `Timor Sea Justice Campaign'. Mr. Howard himself called the treaty "a fair and just outcome."

What theories of justice stand behind these statements? If we look to the history of Australian policy (including that of previous Labor governments) we must conclude that the only theory of justice operating has been the one encapsulated in the phrase "might is right". Since 1972 Australia has used its superior diplomatic clout to get its way--first with Indonesia and, since 2002, with East Timor. Each successive agreement has thus been a treaty in the true sense--a codification of the power relation obtaining between the parties at the time. The most recent agreement is no exception. Australia's retreat from its original 18% offer resulted from the pressure--read: power--that other actors were able to exert, both activists working through the Australian media and diplomatic actors from East Timor and the international community.

The defining characteristic of such a process is that it is blind. Various actors operate stragically with the power that they find themselves able to command. But the outcome is not one which any single actor would have produced, had they been entrusted with its design. Indeed it is possible that the result may be far removed from one which could best satisfy the needs of all the protagonists. This tendency is compounded further when many of the most powerful actors are in fact institutions, themselves the products of similarly irrational struggles for influence.

In contrast to the Australian government, the "Timor Sea Justice Campaign believes that East Timor should control all of the gas and oil fields it is entitled to under current international law, by the establishment of a permanent maritime boundary." [source] This is a concept of justice as "justice according to law". In 2002, just two months before East Timor became a sovereign nation, the Australian government emphatically signalled its rejection of this view by withdrawing its consent to the jurisdiction of the International Court of Justice on matters affecting maritime boundaries. In so acting, Australia takes its place beside other nations--very many of them, but most prominently the economic powerhouses like the United States--who co-operate with international institutions if and for so long as it suits their narrowly-conceived idea of self-interest. The justifications usually given for isolationist policy give a clue as to the mechanism that makes it appear obligatory: policy-makers fear that by committing to a co-operative stance they will leave their state open to exploitation by others who refuse to co-operate. But the fetishizers of Realpolitik see necessity where it does not exist. Australia could give East Timor everything north of the median line. Hell, we could give them a few hundred extra kilometres out of "our" side to boot. This would effect Australian's no doubt, but it is a misrepresentation to say that it would not be open to Australia to do so.

The notion of "justice according to law" would have achieved a different outcome in this case: in all likelihood had the ICJ adjudicated on the matter it would have applied the median line rule and hence given East Timor rights to all of the Greater Sunrise field. The difference between this avenue and that pursued by the Australian government, between international law and "might is right" appears, under the spell of socially necessary illusion, to be one of very great magnitude. It is largely the difference in aspiration between the "Left" and "Right" of mainstream politics. But insofar as the law itself is the product of political processes that are themselves ultimately irrational justice according to law is blind too. It operates as another tool in the struggle over power. The outcomes it produces appear "just" only for so long as we put our trust in structures that operate beyond our control and according to their own logic. There is another notion of justice, summed up like this: "from each according to their abilities, to each according to their needs". That would provide the basis of any politiccal logic that served human interests. It is not impossible to apply such thinking at all points of contemporary political reality, no matter how far we might currently be from living up to it--the Timor Gap controversy would be no exception. But one thing is for sure, so long as we orient ourselves according to "might is right" and even "justice according to law", we cannot really speak of progress.


At 1/23/2006 01:38:00 pm, Blogger fieldmouse said...

I wonder, much brew-ha-ha is made about big powerful nations acting all big and powerful, and much of this leads to a lot of discussion about the nature, and problems, of power. But it seems to me that the central problem here (and which I'm beginning to think has to be the political norm) is not one of power, but of deceit. It's not so much that Howard and Downer get their mittens on a dirty 50% share, but that they then turn around and pronouce those words you quoted, including "affection...sympathy", "fair and just", which frankly make me want to vomit.

I'd rather Howard could come out and say "we scored bigtime! 50%, can you believe it?! all we had to do was use the old bargaining trick: start way past what we were willing to accept! I can't believe this worked!! This is a real victory for Australia."

I do wonder, and I'd like to know if you do too, about what sort of implications such honesty would have. Would we exchange our government for a more deceitful (but *nicer*) one straightaway?

Regarding power, much is made of the way it's fought for and used, but why is it important? Is it only the reading of the other as mysteriously dangerous that feeds it (like "yellow peril")? Does it need deflating on all sides? Why?

""from each according to their abilities, to each according to their needs"." - You drop this in just before the siren, and as such it doesn't get a once over with the critical comb. Do you support this idea generally and secondarily think it ought to be applied to politics? Or do you see that it can have a limited application only, but is useful in this instance?


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