Public International Law - Certain Maritime Arrangements in the Timor Sea - Assignment Example

The Public International Law Student’s Name: Grade course: Tutor’s Name: Date: Question 1 Introduction The Australian government and the Democratic Republic of Timor-Leste entered into an agreement Certain Maritime Arrangements in the Timor Sea (CMATS) in the year 2002 immediately after the Timor-Leste attained its independence. The treaty came into power in 2003. Later it emerged that the Australia government had bugged the Timor-Leste cabinet offices before the treaty was signed. This made the Timor-Leste state to declare the treaty void due to what it called acts of espionage by the Australian government1. The Timor-Leste is not correct to state that the Certain Maritime Arrangements in the Timor Sea (CMATS) is void mainly because of the Australian acts of espionage. This is because according to the article 12 of the Vienna Convention on the Law of Treaties (VCLT) which states that all the parties are bound by the treaty due to the expression of the signature by the state representatives2. The article also states that the signature that is put in place by the representative is shall have the powers of the states because the representative shall have all the powers from the state. Therefore is the Timor-Leste has appended its signature to the treaty through its representative it is bound to fulfil all the agreement that the treaty entails without fail. Article 13 of Vienna Convention on the Law of Treaties (VCLT) further states that the agreement to be bound by the treaty shall be constituted by the exchange of the instruments of the treaty which the two states have agreed upon3. Therefore, the Timor-Leste state is further bound the treaty and cannot declare it void if it has exchanged the instruments which constitute a treaty. It therefore has to ensure that it fulfils the treaty in full. The treaty further states that the ratification or the approval of the treaty is bound by the expression of the acceptance or the endorsement by the representative through the signing the signing of the treaty which shows the intention of the state4. According to the article 15 of the Vienna Convention on the Law of Treaties (VCLT) the agreement of the parties to be bound by a treaty is supposed to be communicated by accession that is the treaty states that such agreement shall be expressed by that party or the state by a way of accession. Also all the parties may consequently agree that such agreement may be articulated by that state by means of accession. Therefore the Timor-Leste state is therefore bound to ensure that it acts and fulfil the treaty due to the fact that it agreed to the signing of the treaty and it cannot declare it void. Also in article 16 of the Vienna Convention on the Law of Treaties (VCLT) it states that the exchange of the instruments of ratification, recognition, endorsement or accession unless otherwise provided by the treaty the party is bound by that treaty when they exchange the instruments between the contracting parties. Therefore, the Timor-Leste state is bound by the treaty if they exchanged the instruments of the treaty with the Australian state and cannot declare it void5. According to article 18 of the Vienna Convention on the Law of Treaties (VCLT) of the treaty the party is obligated not to defeat the entity and resolution of the treaty before it is enacted into force. Therefore, the party is supposed to stay away from acts which compromise what the treaty entails and what it has signed or has agreed to exchange the instruments of the treaty which are supposed to be approved, ratified or accepted until that moment when the party shall have made it clear that it does not intend to be part of the treaty or that moment when it has stated its agreement to be bound by the pact before it is enacted in to force as long as such enacting into force is not unjustifiably deferred6. Article 22 of the Vienna Convention on the Law of Treaties (VCLT) mainly focusses on the reservations withdrawal as well as the objections to the reservations. It states that a reservation can be withdrawn at any given time provided the treaty gives such a provision and the approval of the party has which has agreed to the reservation is not required7. It further states that the withdrawal of the reservation can only become operational in relation to the other contracting party only when the notification has been acknowledged by that party or when the notification has been obtained by the party which expressed the reservation. This therefore means that the Timor-Leste state cannot declare the Certain Maritime Arrangements in the Timor Sea (CMATS) void unless it has expressed it intention of not wanting to be part of the treaty by issuing as request of withdrawal. According to the article 27 of the Vienna Convention of the Law of Treaties which focusses on the internal law and the compliance of the treaties, it states that a state cannot summon the necessities of its interior law to serve as a validation for its failure to enact the treaty. This is rule is supposed to be without bias to the article 46 which focusses on the necessities of the interior law concerning the capability to conclude the treaties. It therefore states that the a party cannot invoke the element that its agreement to be bound by the truce has been stated in violation of necessities of the party’s interior law concerning the capability to conclude the treaties as nullifying its agreement unless that nullification was manifested as well as associated with a rule of its interior law of vital significance8. Therefore, the Timor-Leste state cannot nullify or declare the Certain Maritime Arrangements in the Timor Sea treaty as void due to the fact that its interior law affects the compliance to the treaty signed with the Australia government. The Vienna Convention of the Law of Treaties in article 50 and 52 states the only times when the treaty should be nullified by the parties who are in an agreement is when the expression of the a given party to be bound by a truce has been attained through fraud by its representative either directly or through indirect means through the other negotiating party or if the conclusion of the treaty was attained through intimidation or use force which violates the general ideologies of international law which are constituted in the United Nations Charter9. Therefore, the Timor-Leste state cannot in anyway declare the treaty null and void if the reasons that it is putting forward are not in any way related or concerned with the cases of corruption or the use of coercion and intimidation of its representatives so as to obtain their approval to be bound by the truce during the signing of the treaty. It shall therefore have to ensure that it enact the treaty as well as ensure that all the details of the treaty are fulfilled. According to article 53 of the Vienna Convention of the Law of Treaties which focuses on the conflicting of treaties with an authoritative norm of the common international law, it states that a treaty can be considered as void if during the time of its finalisation, it conflicted with an authoritative norm of the common international law10. An authoritative norm of the common international law is considered to be a norm that is acknowledged and accepted by the global community of the states at large as a norm that no derogation is allowed as well as which may be altered only by the consequent norm of universal global law embracing the same personality. Therefore, the Timor-Leste state cannot be able to declare the treaty void if the treaty does not conflict with the authoritative norm of the universal international law11. According to article 11of the Certain Maritime Arrangements in the Timor Sea which mainly focusses on the dispute settlement, states that in case of any dispute concerning the clarification or the application of the truce, it shall be dealt with through negotiation or discussion12. This therefore means that the Timor-Leste state shall have to go through the ways and methods that were stated in the enacting of the treaty that is it cannot declare the treaty void but it can get into a resolution of their dispute with the Australian government through the means of negotiation as well as consultation13. The Certain Maritime Arrangements in the Timor Sea in article 12 paragraph 2 it states that either party that is willing to terminate the treaty should do so through a written notification to the other contracting party. The treaty shall be terminated after three calendar months from the time the written notification was received. This therefore means that the Timor-Leste state can only terminate the treaty through issuing of a written notification to the Australia government in case it wants to terminate the treaty14. This however should be done only if there have been no petroleum production which has taken place in the area. This is because according to the article 12 paragraphs three which states that in case there is any production of petroleum which has taken place in the area regardless of the termination of the treaty according to the paragraph 2 of the article 12, all the terms of the treaty are supposed to be emanated back into consideration and function as from the date when the production of petroleum was started. Therefore, the Timor-Leste state cannot declare the treaty null and void given the fact that the treaty set the parameters very clearly about the termination and in case the treaty is terminated the production of petroleum took place the treaty shall still come in consideration despite its termination by the Timor-Leste state. Hence it shall have to abide to the regulations of the treaty and ensure that it fulfill them fully15. The Certain Maritime Arrangements in the Timor Sea in its article 11 which mainly focusses on the dispute settlement, it fully states that in case of any dispute concerning the clarification or the application of the truce, it shall be dealt with through negotiation or discussion. This therefore means that the Timor-Leste state shall have to go through the ways and methods that were stated in the enacting of the treaty that is it cannot declare the treaty void but it can get into a resolution of their dispute with the Australian government through the means of negotiation as well as consultation16. This therefore does not give room for the Timor-Leste to declare the treaty void but ton engage the Australia government in the negotiation and consultation so as to end the dispute which further limits the Timor-Leste state from walking away from the deal or rather the treaty. The Vienna Convention of the Law of Treaties in article 53 which focuses on the conflicting of treaties with an authoritative norm of the common international law, it categorically states that a treaty can be considered as void if during the time of its finalisation, it conflicted with an authoritative norm of the common international law. An authoritative norm of the common international law is considered to be a norm that is acknowledged and accepted by the global community of the states at large as a norm that no derogation is allowed as well as which may be altered only by the consequent norm of universal global law embracing the same personality. Therefore, the Timor-Leste state cannot be able to declare the treaty void if the treaty does not conflict with the authoritative norm of the universal international law17. Conclusion The Timor-Leste state government therefore does not have the basis of nullifying the treaty given the fact that according to the Vienna Convention of the Law of Treaties states very clearly on how a treaty should be nullified as well as the circumstances on which the discontented state should go about the nullification of the treaty in question. For instance the dispute settlement, it fully states that in case of any dispute concerning the clarification or the application of the truce, it shall be dealt with through negotiation or discussion according to the CMTS treaty, the conflicting of treaties with an authoritative norm of the common international law, the treaty should be nullified by the parties who are in an agreement is when the expression of the a given party to be bound by a truce has been attained through fraud by its representative either directly or through indirect means through the other negotiating party or if the conclusion of the treaty was attained through intimidation or use force which violates the general ideologies of international law which are constituted in the United Nations Charter and the parties are bound by the treaty due to the expression of the signature by the state representatives. Question 2 Introduction The trans-border espionage activities usually violate the international in various ways. This violation is usually interpreted in various ways depending on the way or rather from the perspective from which one looks at the violation. The trans-border espionage has in the recent past created significant irritation as well as conflicts between states which have been earlier on considered to be allied or friendly to each other. For the purpose of this paper the discussion shall be based on the relationship between the state of Indonesia and the state of Australia18. The Indonesian relationship with Australia begun being sour in 1972 during the agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia which established certain seabed boundaries in the area of the Timor as well as Arafura Seas Supplementary to the Agreement of May 18th 197119. This agreement demarcated the seabed frontiers between the Australia and the Indonesia in the regions of Arafura and western Timor seas. After the agreement was enacted the Australia government started to claim that there was no any agreement that was agrees upon with Portugal which was the U.N. administrative authority of territories of East Timor. The Australian government obtained another agreement which gave it custody over a natural prolongation so as to set the maritime frontiers by a nearly eighty per cent of the area which extended to the areas which were claimed by the Indonesia. This made Indonesia to acquire the East Timor territory by force and claim ownership of these areas. This greatly made the Australia to feel aggrieved by this action of Indonesia. This deadlock between the Australia government and the Indonesia government went on until 1989. This standoff led to the signing of the infamous Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in the territory between the Indonesian Province of East Timor and Northern Australia which is known as the famous Timor Gap Treaty. The treaty enacted into force on 9th of February 1991.  Under this treaty Australia and Indonesia agreed to set up a region of collaboration in order to distribute between them the region’s resources which included oil resources which belonged to the people of East Timor territory20. Recently the Indonesia felt aggrieved when the news emerged that the Australia government had been involved in tapping of the president of Indonesia as well as other senior government officials. The Indonesian government said that the act violated the international law as well as the humanitarian rights. It also called that illegal21. This was due to the fact that in Indonesia it is unlawful to intercept telecommunication since it is prohibited under the local law. Further, given the fact that the phone tapping was not authorised by the Indonesian government it is therefore considered unlawful under the Indonesian law. The Indonesian government also considers that the unlawful interception of the telecommunication is an act of invasion on the right to privacy although it does not have any law in place which majorly prohibits or rather protects the individuals in Indonesia from such a kind of breach of invasion. Australia also has such a law in place which prohibits the unlawful phone tapping or the interception of telecommunication but it is only applicable to the telecommunications networks in Australia22. The act of phone tapping can be considered as a spying or espionage. The definitions may vary but the act is understood to mean the gathering of information about an individual but in this about a state for security purposes by another or on the behalf of a state or an organisation. A lot of countries world over have various laws barring the act of espionage in their countries. For instance in Australia the act of espionage is forbidden in the criminal code act of 1995 under section 91.1 while in Indonesia the act of espionage is prohibited under the penal code of Indonesia in article 113 under section 15. Also under the Indonesian law stealing of documents as well as the informations is forbidden. Therefore, the phone tapping of the Indonesia president, his wife as well as the senior government official it is considered as an act of espionage in Indonesia but under the Australian laws there was no espionage law was broken23. Under the international law the potential sources of espionage would most likely be under the treaties or the normal international law. In the international law there is no multilateral treaty which forbids the acts of espionage and it is always very hard to assume that there should ever be any treaty due to the fact that almost every nation in the world over is either involved in any espionage activities or similar activities which are closely related to the espionage24. The nations are also interested in engaging to such acts of espionage if it had the oopportunity as well as the capacity to do so. Furthermore, some countries consider spying as the sovereign duty of the government as part of its sole obligation to defend the citizens as well as their interests. Therefore, it is very hard for the normal international law to forbid the act of espionage mainly due to the fact that the usual laws are always gradually evolving over a long period of time. The international law can be relevant to the act of espionage under the principle of non-interference in the internal affairs of another state. It is normally accepted that it unlawful for any intervention of the internal affairs to be coercive in nature that is if the phone tapping is done so as to influence the state to act in a certain way hence this act of espionage becomes unlawful under the international law. Furthermore, if these activities of interception of the telecommunication went further to influence the internal affairs of a given state then this act of espionage is unlawful under the international law. The international customary law forbids any state from exercising its power or performing activities of the state in the territory of another state without the permission from the state concerned or affected by those activities. The phone tapping acts of espionage as well as other similar activities which violate this principle can as well be considered as the state activities which are carried in another country territory without the permission of the concerned state. In this case the Australian government conducted its state activities in the territory of another state that is the Indonesia territory without the consent of the Indonesian government. This therefore contradicts with the international customary law and it is therefore fits to be classified as an act of espionage against the Indonesian government. This act of phone tapping by the Australian government also violates the right to privacy of the international law which is preserved in various international human rights instruments which comprises of the 1996 International Covenant on Civil as well as the Political Rights in article 17. Australia and Indonesia are parties to these treaties. Although the extent to which a given state is supposed to adhere or rather respect this right especially when an individual is outside the state is yet to be settled25. According to the current situation it seems that such rights only extend to only those who are within the states territory. The recent interception of the telecommunication was not within the Australia’s jurisdiction and therefore this act is considered as an act of espionage. The right to right to digital privacy has been hugely discussed by the UN General Assembly which condemns the act of surveillance of the mass as well as the interception of the telecommunication. It argues that this can have serious effects on the human rights. Under the international law this act of espionage of phone tapping can be considered as a violation of this law especially if this interception of telecommunication was carried out by the Australian embassy in Indonesia or from the Australian embassy in Indonesia. This is because the Vienna Convention on Diplomatic Relations of 1969 states that a state is supposed to send a diplomatic mission so as to show respect to laws of the reception state as well as not to interfere with the internal affairs of the concerned state. In this case the Australia government was supposed to send diplomatic mission to Indonesia government so as a way of showing respect as well as avoiding getting involved or interfering with the internal affairs of the local government which is the Indonesian government. Both the Australia and Indonesia are part of this treaty. The treaty further prohibits the use of embassy properties in any way which is not in relations to what it is supposed to be doing or conducting in the country where it is located as stated in the convention. According to the Vienna Convention on Diplomatic Relations of 1969 in article 3 under paragraph 1 sub section d it states that by ascertaining through all the legal means necessary the circumstances as well as the developments in the recipient nation as well as the reporting to the concerned government which has sent the delegation. Therefore the use of the embassy facilities to gather information through illegal ways it would be considered as a violation of this convention which shall have violated the article 41 of this convention26. The Indonesian government may not be able to arrest the individuals who are involved in the phone tapping so as to prosecute them under the Indonesian using their domestic criminal law mainly due to the fact that Australia would force the Indonesia government to respect the diplomatic immunity under the international law27. Therefore the only way forward for the Indonesian government is to complain through the various diplomatic channels by portraying the violation of the international law by the Australian government. The Indonesian government cannot put a claim before the International Court of Justice except when the Australia government accepts that it violated the international law by tapping the phones of the Indonesian president, his wife as well as the other senior government officials28. The Indonesian government can also withdrawal its cooperation as well as breaking off the diplomatic relations with the Australian government. This may involve the recalling of its Indonesian ambassador from Canberra so as to consult further as well as dismissing all the Australian officials from Indonesian. The government of Indonesia can as well freeze all the property of the Australian government so as to force it to agree to these allegations or cooperate in the persecution of the involved individuals in the phone tapping scandal29. Conclusion The acts of trans-border espionage has in the recent past contributed greatly in the conflicts between the formerly allied sates for instance when looking at the states of Australia and Indonesia. The acts of espionage has violated the international law through the various ways such as the acquisition of the East Timor territories by Indonesia, the act violated the international law as well as the humanitarian rights30. It also called that illegal. This was due to the fact that in Indonesia it is unlawful to intercept telecommunication since it is prohibited under the local law. Further, given the fact that the phone tapping was not authorised by the Indonesian government it is therefore considered unlawful under the Indonesian law, violation of the right to privacy of the international law which is preserved in various international human rights instruments which comprises of the 1996 International Covenant on Civil as well as the Political Rights in article 17. Australia and Indonesia are parties to these treaties, exercising its power or performing activities of the state in the territory of another state without the permission from the state concerned or affected by those activities. The phone tapping acts of espionage as well as other similar activities which violate this principle can as well be considered as the state activities which are carried in another country territory without the permission of the concerned state, unlawfulness of any intervention of the internal affairs to be coercive in nature that is if the phone tapping is done so as to influence the state to act in a certain way hence this act of espionage becomes unlawful under the international law, phone tapping can also be considered as a violation of this law especially if this interception of telecommunication was carried out by the Australian embassy in Indonesia or from the Australian embassy in Indonesia as well as the international customary law forbids any state from exercising its power or performing activities of the state in the territory of another state without the permission from the state concerned or affected by those activities31. This therefore makes the Indonesian government not to be able to arrest the individuals who are involved in the phone tapping so as to prosecute them under the Indonesian using their domestic criminal law mainly due to the fact that Australia would force the Indonesia government to respect the diplomatic immunity under the international law. Therefore the only way forward for the Indonesian government is to complain through the various diplomatic channels by portraying the violation of the international law by the Australian government. The Indonesian government cannot put a claim before the International Court of Justice except when the Australia government accepts that it violated the international law by tapping the phones of the Indonesian president, his wife as well as the other senior government officials32. The Indonesian government can also withdrawal its cooperation as well as breaking off the diplomatic relations with the Australian government. This may involve the recalling of its Indonesian ambassador from Canberra so as to consult further as well as dismissing all the Australian officials from Indonesian. The government of Indonesia can as well freeze all the property of the Australian government so as to force it to agree to these allegations or cooperate in the persecution of the involved individuals in the phone tapping scandal. References Abass Ademola, Complete International Law, (Oxford press, 2012). Anthony Aust, 2000, Modern Treaty Law and Practice, 45(20) 254–55. Bin Cheng, 1953, General Principles of Law as Applied by International Courts and Tribunals 21(53), 158-160. Christine Gray, 1990, Judicial Remedies in International Law 37(19), 100-101. Clive Schofield, 2007, Minding the Gap: The Australia–East Timor Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), 22(27) 189-192. Commander Roger G. Scott, 1999, Territorial Intrusive Intelligence Collection and International Law, 46(19), 217–23 Dieter Fleck, 2007, Individual and State Responsibility for Intelligence Gathering, 687(27), 698–702. Dixon Martin, Textbook on International Law, (Oxford University Press, 2013). Evans Malcom, International Law, (Oxford University Press, 2010). Henderson Conway, Understanding International Law, (John Wiley & Sons, 2009). Hugh Thrilway, 2013, The Law and Procedure of the International Court of Justice, Fifty Years of Jurisprudence 457(20) 21–23. Jonathan Charney & Liam Alexander, 1993, International Maritime Boundaries 25(13), 1210-11. Lord McNair, 1991, The Law of Treaties, 34(11), 553–54. Manuel Garcia-Mora, 1964, Treason, Sedition and Espionage as Political Offences Under the Law of Extradition’, 26(65), 79-80 Marcia Langton, Maureen Tehan, Lisa Palmer & Kathryn Shain, 2004, Honour Among Nations? Treaties and Agreements with Indigenous People 12 (24)329-42. Paul Reuter, 1989, Introduction to the Law of Treaties, 21(19), 137–38. Richard Alton & Jason Struble, 2010, The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice, 9(21), 14–17 Roland Stanger, 1962, Essays on Espionage and International Law, 11(12), 12-13. Richard Baxter, 1951, So-Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs, 28(19) 323-329. Shaw Malcom, International Law, (Cambridge University press, 2003). Tom Allard, ASIO Raids Office of Lawyer Bernard Collaery Over East Timor Spy Claim, (Sydney Morning Herald, 2013). Read More