Time to Fix A Historic Wrong and Repair Australia's Commitment to International Law

9 September 2019

Centre Alliance Senator Rex Patrick today announced his intention to introduce a Senate motion calling on the Australian Government to revoke declarations made in March 2002 that limit Australia’s acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS).

"Australian Governments frequently proclaim their commitment to international law and a rules-based international order," Senator Patrick said.  

"But seventeen years ago Prime Minister John Howard’s Government abruptly limited Australia's acceptance of the compulsory jurisdiction of the ICJ and the ITLOS in maritime boundaries disputes. The purpose of these unilateral declarations under the Statute of the ICJ and United Nations Convention on the Law of the Sea (UNCLOS) was to prevent our newly independent neighbour Timor-Leste from exercising its rights under international law."

"Australia’s commitment to international law was pushed aside in a shameless effort to grab as much as possible of the oil and gas resources of the Timor Sea. This was a historic wrong that needs to be fixed."

At the time the Labor Opposition condemned the Howard Government’s action, with Labor spokespersons Kevin Rudd and Robert McClelland saying that it:  

‘marks a historic departure from Australia’s proud record of accepting the compulsory jurisdiction of the International Court of Justice without reservation. … It casts doubt on our commitment to the ICJ as an important element of the international legal order. And it invites other countries to follow suit by lodging new exceptions to their acceptance of ICJ jurisdiction.  All of this counts against Australia’s interests in having the ICJ recognised as a forum for the peaceful settlement of a wide range of international disputes when negotiation and arbitration have failed.  Excluding maritime boundary delimitation disputes from our acceptance of the International Tribunal for the Law of the Sea as a forum for compulsory dispute settlement sends equally negative messages.’

At that time, March 2002, the Australian Parliament’s Joint Standing Committee on Treaties (JSCOT) was denied the opportunity to review the declarations before binding treaty action was taken.  

When JSCOT subsequently reported in August 2002 the non-government committee members expressed the view that the Government’s declaration relating to the ICJ “damages Australia’s international reputation and may not be in Australia’s long-term national interests' as it 'may be interpreted as an effort to intimidate and limit the options of neighbouring countries in relation to any future maritime border disputes.’  

After nearly two decades of an acrimonious dispute and the Australian espionage scandal exposed by Witness K, Australia and Timor-Leste have now signed and ratified a maritime boundaries treaty.  

Australia has also concluded maritime boundary agreements with Indonesia, Papua New Guinea, the Solomon Islands and France (relating to New Caledonia and Kerguelen Island).  

Senator Patrick said that in these circumstances it is appropriate to revisit the question and for Australia to re-establish its full commitment to international law by revoking the ICJ and UNCLOS declarations made in March 2002 and making new declarations which submit maritime delimitation disputes to the jurisdiction of the ICJ or ITLOS. 

"I will be moving a Senate motion that calls on the Minister for Foreign Affairs to report to the Senate on the Government’s preparedness to take action, and in accordance with Australia’s treaty making process for JSCOT to review this matter as a matter of urgency," Senator Patrick said. 

"This has been a long-standing international embarrassment for Australia that should be brought to an end without further delay." 

"If Australia is to stand up for international law and a rules-based international order and encourage other countries to resort to international dispute resolution processes, we must get our own house in order."

"Centre Alliance urges both the Coalition and Labor to support our Senate motion and re-affirm Australia’s commitment to international law."  

A copy of the motion can be found here

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