ANALYSIS ON AUSTRALIAN SPYING SCANDAL

The relationship between the three neighbouring countries Timor-Leste, Indonesia, and Australia is appeared to reach the coldest point as the impact of suspected spying activities to be conducted by Australia towards its two neighbouring countries.

In the case of Timor-Leste, the relationship has become severe due to the implication of such activity towards the effort of Timor-Leste Government to nullifying the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).

It is assumed that the espionage activity conducted by Australia was intended to find out the decisions and efforts made by the Timor-Leste Government on the negotiation of the $40 billion Timor Sea oil and gas in 2004. Unfortunately, the activity is suspected to involve some Australian who claimed to be as humanitarian workers and planted some listening devices inside Timor-Leste Cabinet room and Prime Minister Office in 2004.

This will be a very bitter experience for the people of Timor-Leste if it is found that the Australian government was intentionally committed such practice to gain some advantages on the Oil and Gas negotiation and it will definitely harm the relation between two countries that has been established since the WW II. However, from the international perspective, it is difficult for the Australian government to accountable for such practices as there is lack of international convention that prohibits such activities. As in Tony Abbot statement he said: “All countries in the world are spying one another”. This statement shows that the Australia Government has intention to downplay the issue and make it look like a “normal” activity.

However, under the Principle of Sovereignty Equality, the Australian Government has violated the sovereignty of an Independent country such as Timor-Leste. Under this principle, every states, including Timor-Leste, are equal and should be given equal respect to each other and have right to self-determination and not to be intervened in their internal affairs by other countries or by international organisations.

Also, the Principle of Sovereignty Equality has been codified inside the Article 2 Paragraph (1) of the United Nations Charter and have accepted as and international customary. Therefore, it can also be concluded that Australian Government have violated both the United Nations Charter and international customary principle that accepted and recognised by nations in the world.

The spying scandals activity could shave severe impact not only the relationship between two countries but also the trust that have been built between two nations. As a result, any Australian Humanitarian Aid will be cautioned both by the government as well as the community at large. Moreover, it is very shameful and unnecessary to the Australian Government to spying on Timor-Leste under the reason to find Timorese Government’s “moves” in the CMATS negotiation table, while Australia itself has more upper hands with more experience in diplomatic relations and has more technologically advantages on oil and gas explorations.

Another fundamental reason for Timor-Leste to void the CMATS is that the agreement was reached with no good faith by the Australian Government. The government of Timor-Leste based its discontentment on Articles 26 and 49 of the 1969 Vienna Convention on the Law of Treaties.

Under the Article 26, the Timorese Government can invoke the CMATS with reason that the Australian Government may have been performing the agreement with no good faith. It is suspected that the spying activity itself have been used while the both governments conducting negotiation in 2004 and probably continue being used after it. Furthermore, under the Article 49, the Australian espionage activities can be categorised as “fraudulent conduct”, which can be used by the Timorese Government to invalidate its consent to be bound towards the CMATS. Therefore, the CMATS can become invalid and should be declared as null and void.

However, the Permanent Court of Arbitration in Hague probably unlikely will decide to declare the CMATS as invalid agreement only on the basis of no good faith by the Australian Government without any solid evidence to prove the spying allegation. The Australia Government understand their situation where they are trying to prevent the CMATS becoming a invalid agreement and in the same time trying to cover up their spying activities, which can very embarrassing to them, so they raided Timor-Leste lawyer Bernard Collaery’s house and seized the document that can prove the allegation and cancel the passport of the former Australian spy that would become the key witness for Timor-Leste in order to make Timor-Leste Government in Hague without any strong and solid evidences against Australia.

Even though, if the Permanent Court of Arbitration in Hague decide that the CMATS is not an invalid agreement, however there is a good possibility that the Court ask Timor-Leste and Australia to renegotiate the agreement, so it will be a good opportunity for Timor-Leste to renegotiate a new agreement that will favour Timorese side.

For Australian Government, this accident has tarnished their reputation as trustworthy regional partner not only to Timor-Leste but also to Indonesia and other countries in Southeast Asia Region. If the Australia Government refused to apologise restore its reputation, this will implicate to the isolation of Australian Government from the region and this may also implicated into their international diplomatic mission in the Pacific and the South East Asia region.

In conclusion, any nation in the world deserves the right to be respected and to be treated equally not only before the law but also in the relationship between nations. No nation should interfere others affairs to gain any advantages. For Timor-Leste, since our National Intelligence Service is still at its age of developing, we are expecting that this incident would become a valuable lesson to our Authorities to alert in order to be able to anticipate any harmful activity that could be committed by any country in the future that could harm our sovereignty.

Salvador Soares
12 December 2013

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By TSA - NT