Docked and under some kind of arrest in Port Vila, Vanuatu, are two Chinese flagged fishing boats, allegedly caught in unauthorised waters.

Of course it makes headlines, but the truth here is decidedly murky.

The arrest of Donggongxing 13 and 16 is headline stuff; South Pacific nations seldom arrest Chinese boats. It causes too much trouble with Beijing.

• READ MORE: Vanuatu seizes Chinese fishing vessels
• Chinese vessels detained by Vanuatu, accused of fishing illegally

After all there are between 200 and 300 Chinese boats operating in Vanuatu’s 663,251 sq km exclusive economic zone. Few of them are ever seen in Vila or Luganville; they all operate out China’s biggest South Pacific fishing base – Suva, Fiji.

All of them are either longliners or purse seiners, taking tuna.

But not these arrested boats.

Now this is odd – this is a case of the arrests being less significant than the class of boat.

Known as ‘pot vessels’
In the Western and Central Pacific Fishing Commission (WCPFC) register of 3450 fishing boats there are just three – all three are Chinese – known as “pot vessels”.

The names of the exclusive three? Donggongxing 13, 16 and 17.

Why are the region’s only pot vessels sitting off Hiu in the Torres Islands?

The police map issued to the media shows they were arrested 32 km west of Hiu. That puts them inside Vanuatu’s territorial waters (not the EEZ) as defined by the Marine Zones Act 2018.

As the Global Fishing Watch screen grab shows, there are plenty of Chinese boats (out of Suva) around Hiu – in the EEZ but not in territorial waters. Even the Chinese avoid going into territorial waters; getting caught is too easy (especially if the French send a jet aircraft).

However, it should be noted that neither Donggongxing 13 nor 16 show up on Global Fishing Watch: they had their positioning systems switched off.

A tuna boat probably has no real reason to go into territorial waters, but WCPFC data gives a possible clue. The vessels were authorised to catch grouper and sea cucumber.

Both catches are lucrative
Although beche de mer and grouper are ocean species, they are also easy to catch closer to shore, inside territorial waters. It is why the Vietnamese “blue boats” were reaching into the South Pacific. Both catches are lucrative.

All three Donggongxing vessels are owned by Zhuhai Dong Gang Xing Long Distance Fishing Co. Beijing has given the relatively new company permission to fish in Mauritania in Africa, and Vanuatu.

Their permissions were given under the Chinese government’s “One Belt, One Road” (the Belt and Road Initiative (BRI)).

Because China has given an international commitment to eventually cut back on building new fishing boats, Dong Gang Xing has been constructing them quickly. Ten are targeting for the Pacific.

And this is where it gets odd; the company says they have permission under BRI to build a base in Vanuatu.

Why they believe this is not clear. Vanuatu has not said anything but has instead arrested two boats.

But were the two boats in territorial waters because they believed that under the deal between Vila and Beijing, Chinese boats can now enter territorial waters?

And if so, is Vanuatu heading for a diplomatic row with China?

Michael Field, who writes for Nikkei Asia, has provided this article for Asia Pacific Report.

East Timor’s outgoing Prime Minister Dr Mari Alkatiri says that after almost two decades of separation from Indonesia, the country’s relations with its neighbour continue to strengthen despite some unresolved issues.

Indonesia “is our biggest supporter,” he said.

Timor-Leste, also known as East Timor, celebrated the 16th anniversary of its hard-fought restoration to independence last week on May 20.

The day marked Timor-Leste regaining its independence after 24 years of Indonesia’s occupation, which invaded the country shortly following its independence from Portugal in November 1975 that political party Frente Revolucionária de Timor-Leste Independente (Fretilin) unilaterally declared.

In an exclusive interview at a hotel near Fretilin party’s headquarters, Dr Alkatiri, Fretilin’s secretary-general, described East Timor’s relationship with its former invader as “amazing, very good.”

“We still have some pending issues, such as maritime and land borders in Oecussi,” he said, referring to an East Timor coastal exclave surrounded by Indonesia’s East Nusa Tenggara province, which lies on the western part of Timor Island. East Timor is located on the island’s eastern half.

Oecussi is a special administrative zone and has been designated as special economic zone with Dr Alkatiri as its president.

Maritime border dispute
Dr Alkatiri, who also served as East Timor’s first prime minister from 2002 to 2006, said both countries need to solve the border issue soon because it would be difficult to define a maritime border on the Savu Sea without a clearly marked land border.

“But the goodwill from both governments is there,” he said, adding that successive governments of East Timor would continue to strengthen the relations between the two countries.

Dr Alkatiri described Indonesia as East Timor’s “biggest supporter” in its bid to become the 11th member of the Association of Southeast Asian Nations (ASEAN).

Dr Alkatiri, who has been serving his second term as prime minister since September last year, is a Muslim leader in a predominantly Catholic country. His family on his paternal grandfather’s side came from Hadramaut in Yemen.

“They came as traders at that time and decided to stay,” he said.

Dr Alkatiri’s maternal grandparents were Timorese who came from Baucau and Liquica districts. He is married to Marina Ribeiro and has three children.

De facto leader
Indonesia was one of the regional bloc’s founding countries when it was established in 1967, and is regarded as its de facto leader.

Indonesia endorsed East Timor’s ASEAN bid when it formally submitted its application in 2011 during Indonesia’s ASEAN chairmanship.

Singapore, the current chair, has been reluctant to welcome East Timor into the bloc, but has said it looked forward to East Timor meeting the requirements to allow it to become a member.

Singapore’s Prime Minister Lee Hsien Loong said after hosting an ASEAN leaders’ summit in April that the topic was discussed during the forum, but “there was no extended discussion of the matter in this meeting”.

Dr Alkatiri said that ASEAN membership is “a very long dream”.

So far, Timor-Leste has met two of the requirements to be an ASEAN member: The country is located in Southeast Asia and has embassies in all 10 member states.

“This is one of the few things that is a consensus between the leadership of Timor Leste, despite the differences,” he said.

Coalition rule
Dr Alkatiri’s apparent successor Xanana Gusmao, who is poised to serve as prime minister for the third time, said East Timor is doing its best to become an ASEAN member.

“We understand some (member) countries think we are not ready, but sooner or later, we will be a member,” Gusmao said in an interview at his party National Congress for Timorese Reconstruction (CNRT) headquarters.

CNRT led a three-party coalition that beat the shortlived, Fretilin-led minority government in the May 12 parliamentary election.

Dr Alkatiri said the most pressing need for East Timor, with almost half its 1.2 million population still living in poverty, was government investment in public infrastructure, such as education and health, and spending on basic living needs, such as community housing and clean water.

“This is a 16-year-old country. We still need to build the nation; we really need to strengthen the foundation of the nation, institutional, political foundation, everyone needs to join efforts to do it,” he said.

• More Timor-Leste stories

Without any media fanfare, Australian Foreign Minister Julie Bishop published a statement on 9 January 2017 announcing that Australia and Timor-Leste had agreed to terminate the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).

This news is more welcome to the Timorese government than to the Australian government. But the uncertainty created by this Timorese win might in time impact more adversely on Timor than on Australia. Only time will tell.

The starting point of any moral and prudential assessment of the announcement must be an acknowledgment that the self-determining, sovereign government of Timor-Leste has achieved its objective of forcing Australia to the table to negotiate maritime boundaries in the Timor Sea.

Australia had not always been the unwilling party when it came to the negotiation of maritime boundaries. Back in 2004, Australia was keen to commence the protracted negotiations, knowing that ultimately Australia and Timor would need to be joined by Indonesia at the table to finalise boundaries delimiting the maritime jurisdiction of all three countries in the Timor Sea.

In 2004, Timor was already reaping the benefits from the Bayu Undan oil and gas deposit which was being extracted north of the median line between Australia and Timor Leste. Under the 2002 Timor Sea Treaty, Timor was entitled to 90 percent of the upstream revenue from any deposits within the Joint Petroleum Development Area (JPDA) covering the area in dispute between Australia and Timor.

Basically, Australia has continued to claim jurisdiction over the continental shelf up to the edge of the Timor Trough, while Timor (like Portugal, its colonial master in times past) has claimed jurisdiction over the area north of a median line between Australia and Timor.

The next major deposit to come on line after Bayu Undan was Greater Sunrise which straddles the eastern lateral line between the JPDA and the area clearly within Australia’s jurisdiction.

Under the 2002 Treaty, Timor would have been eligible only for 18 percent of the upstream revenue (90 percent of 20 percent) because 80 percent of the Greater Sunrise deposit lay within the Australian jurisdiction if the eastern lateral line remained in place.

‘Australia has, at least for the moment, taken a huge gamble’
It was the Timorese leaders, not the Australians, who proposed in 2004 that boundary negotiations be put on hold and that a more creative solution for the development of Greater Sunrise be found.

The Timorese were confident that Sunrise could be developed promptly. The Timorese leaders were delighted when they convinced the Australians to agree to a 50-50 upstream revenue share for Sunrise. Also, the Timorese were given the exclusive right to manage the water column inside the JPDA which meant that they could issue fishing licences there.

The parties agreed to extend the delay in negotiation of a maritime boundary from 30 years to 50 years, thinking this would provide ample time for the exploitation of Sunrise and any other petro carbons discovered in the JPDA.

Such a delay suited Australian officials, who were getting worried that the Indonesians might want to revisit their earlier boundary determinations which could look disadvantageous to Indonesia considering what the Timorese might manage to negotiate, given recent developments in the international law of boundary delimitations.

In January 2006, the Australian and Timorese governments signed CMATS but the violence and political disruption in Timor meant a one year delay on ratification by the Timor parliament and president. During 2006, Australia once again despatched peacekeepers to Timor at the request of the Timor government.

Despite the upheavals in Timor as well as the complexity of some of the provisions in CMATS, (including a novel proposal that some of the treaty provisions would be resurrected if mining occurred even after one of the parties had terminated the treaty), Australian Foreign Minister Alexander Downer insisted on Australian parliamentary approval of the treaty without the usual time allowed for scrutiny by the Joint Standing Committee on Treaties (JSCOT). In a very non-partisan stance, JSCOT reported:

“The CMATS Treaty contains new and important obligations and raises different issues which should have been subject to the usual process of scrutiny and review. In this instance the national interest exemption should not have been invoked before the Committee was given a reasonable opportunity to consider and report on the Treaty within the government’s timeframe.”

Things turned sour
Things started to turn sour when the joint venturers for Sunrise informed both governments in 2010 that their preferred development options were FLNG (floating liquid natural gas) or piping the gas to Darwin for processing. The Timorese were hoping that the joint venturers could be convinced to pipe the gas to Timor across the Timor Trough so that industry might be developed on the south side of Timor.

The joint venturers insisted that any development plan had to provide the “best commercial advantage consistent with good oilfield practice”. They were adamant that a pipeline to Timor with subsequent processing in Timor was a third option, and never likely to be first.

“The Timorese will need to convince the Indonesians to give less weight to their own islands when it comes to drawing the lateral line. This could take many, many years. After all, Timor and Indonesia have not yet succeeded in finalising their land borders.”

Being flush with funds from Bayu Undan, the Timor government could by this time afford very good legal advisers, including Sir Michael Wood and Vaughan Lowe from the United Kingdom. They advised that if a boundary negotiation were complete, there was every chance that the whole of Greater Sunrise would fall within Timor’s jurisdiction.

Timor would then be able to dismiss the joint venturers who were unwilling to contemplate development in Timor and to enlist a developer sympathetic to Timor’s nationalist development goals.

The significance of the January 9 announcement is that Timor has, at least for the moment, taken a huge gamble. Timor has forfeited the right to manage the water column inside the JPDA and it has agreed to a reduced share in the upstream Sunrise revenue from 50 percent to 18 percent should it be developed before the finalisation of maritime boundaries.

Were the eastern lateral to remain where it presently is, Timor would then be entitled to no more than 20 percent of the upstream revenue flow.

The big risk
Timor’s legal advisers are arguing that the eastern lateral should be drawn more favourably for Timor so that the whole of Sunrise then falls within Timor’s jurisdiction. But here is the big risk. The present eastern lateral has been used in the past by Australia, Portugal and Indonesia — all claiming that a line of equidistance giving equal weight to all islands is appropriate.

Before the Timorese come to negotiate the eastern lateral determining the exclusive economic zones of Australia and Timor, they will need to negotiate that first part of the eastern lateral determining the territorial seas and the contiguous zones of Timor and Indonesia.

The Timorese will need to convince the Indonesians to give less weight to their own islands when it comes to drawing the lateral line. This could take many, many years. After all, Timor and Indonesia have not yet succeeded in finalising their land borders.

And Indonesia has already indicated that it would prefer to finalise its maritime borders north of Timor involving only the two countries before they come to consider boundaries south of Timor which will require all three countries to be at the table.

I applaud the Timorese leaders for their persistence in scrapping CMATS. CMATS was a good deal at the time, but it had reached its use-by date once the Timorese lost interest in the development of Sunrise without the prospect of onshore development in Timor.

From here the stakes are high. The Timorese may get the whole of Sunrise but then they will need to find a developer willing to incur the added cost and uncertainty of a pipeline across the Timor Trough and subsequent development in Timor.

Then again, they may be left with only a 20 percent share in any future Sunrise development rather than the 50 per cent presently on the table, and in the meantime, they will have lost the exclusive right to manage the water column inside the JPDA.

For Timor, the prospective gains are astronomical; for Australia, they’re peanuts. That’s the ongoing tragedy of this long running battle between David and Goliath in the Timor Sea. The Timorese have had a win, but they could still lose, big time.

Frank Brennan is a Jesuit priest and professor of law at Australian Catholic University. This article was first published by Eureka Street.

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