Conclusion of Conciliation between Timor Leste and Australia

On 5 September 2017, the Permanent Court of Arbitration announced that there has been an agreement reached by conciliation between Timor Leste and Australia.  The dispute concerns the delimitation of maritime boundaries between Australia and East Timor, and is subject to the United Nations Convention on the Law of the Sea (UNCLOS).  There is enormous practical, commercial significance to the dispute due to the presence of oil and gas in the area.

There is often confusion surrounding the terms ‘mediation’ and ‘conciliation’. In some circles, the terms are considered to be synonyms, and used interchangeably – and most dictionary definitions will follow this approach. Similarly the Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) refers in Article 47 to a hybrid conciliation/arbitration process, but this is commonly described and referred to as arb-med, and their Online Arbitration Rules refer in Article 37 to mediation.

In other contexts, both mediation and conciliation are considered to have a common process, but differ in the role of the third party facilitator. Here, a mediator would generally be less interventionist than a conciliator, and would not necessarily have legal qualifications in the subject matter of the dispute. The role of the conciliator, by contrast, is more advisory or evaluative than facilitative in nature. In the Australian context, for example, conciliation usually takes place within a statutory framework where a government appointed conciliator attempts to facilitate discussion and settlement between disputants, using the conciliator’s subject-matter expertise in the legal framework for the dispute.[1]

In public international law, good offices, mediation, and conciliation are often presented as being on a continuum of less to more formality. JG Merrills, considered a leading authority in state-state dispute settlement, states that the distinction between mediation an conciliation is that “a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations [of the type found in conciliation].”[2] He characterises conciliation as a method that “puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration.”[3] This then contemplates a third party taking control of the investigation of a dispute, and proposing solutions that the parties may then wish to accept or reject, rather than a third party facilitating a search for common ground between the parties, or assisting the parties to reach their own negotiated terms of settlement.

The conciliation between Timor Leste and Australia very much follows the model set out by Merrils.   The process was undertaken by a five-person panel (known as a Commission),  chaired by Danish Ambassador Peter Taksøe-Jensen, who was also a former Assistant-Secretary General for Legal Affairs of the United Nations.  The rest of the panel was comprised of  Dr. Rosalie Balkin,  an Australian national who is former Director of Legal Affairs and External Relations at the International Maritime Organization, Judge Abdul G. Koroma, a Sierra Leone national and retired judge of the International Court of Justice,  Professor Donald McRae, a dual national of Australia and New Zealand and currently a Professor of Law, and Judge Rüdiger Wolfrum, a German national and member of the International Tribunal for the Law of the Sea. The composition of the panel, and the vast range of experience in maritime boundary disputes highlights the importance of their role as content experts.     The Australian Government has released a basic fact sheet on the way in which the process operates.

The Permanent Court of Arbitration has offered a fascinating insight in to the conciliation processes by making public a video of the opening of the conciliation between Australia and East Timor. The video is online here and is worth watching.

This conciliation also highlights the role of symbolism in international relations.  As the Chair of the Commission noted, the date of the agreement was 30 August – which also represents the anniversary of Timor Leste’s independence referendum, which was held on 30 August in 1999.  The conciliation is also significant as it is the first use of the conciliation procedures of UNCLOS, and states around the Asian region in particular will be closely observing the process and the ultimate resolution.   In this regard, Timor Leste’s Agent in the proceedings, Minister Agio Pereira, commented in the press release:

With our joint success at resolving our dispute through this conciliation process, Timor-Leste and Australia hope to have set a positive example for the international community at large.

As the press release explains, the details of the settlement are still being negotiated, and will remain confidential, as will the content of the conciliation itself.  The final agreement is expected to be made public in October 2017.

[1] See, for example, the Conciliation Process Model of the Australian Administrative Appeals Tribunal – http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/concilication-process-model

[2] JG Merrills, International Dispute Settlement (5th ed) (2011) at 26.

[3] Ibid, at 58.

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2 thoughts on “Conclusion of Conciliation between Timor Leste and Australia

  1. Thanks very much for posting this Lisa – fascinating. Is it common for the PCA and similar bodies to make such conciliations/processes public? Are norms around making such processes public changing? Thanks again!

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    • Dear Morgan, thanks for your comment and for following our blog. There is no uniform practice across the various international tribunals but I think it’s possible to say there is a a slow but sure change of expectations that international processes should be made public. By and large the Permanent Court of Arbitration processes are still private, and requires the consent of the parties to the proceedings to agree to make the hearings public. The International Tribunal for the Law of the Sea is public by default but can a request can be made to close the proceedings. The World Trade Organization now fairly regularly has public hearings of disputes between the US, Canada, and the EU, but again it requires the consent of the parties. Open hearings tend to be more symbolic than practical – for the first public hearing in the WTO Appellate Body the WTO set up some large spaces for the expected crowd, and almost nobody showed up except for a few trade boffins and perhaps the occasional journalist. Having said that, symbolism is important in international law as elsewhere and the perceived openness of these hearings matters.

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