⊗
Thursday 4th July, 2024
International Law: Crisis, Conflict and Cooperation
Panel 1A: Combatting the Climate Crisis: International law and its role in balancing the power of asymmetry between developed and developing States in the context of climate change
University of Melbourne Law School
Melbourne, Australia
3 July 2024
Thank you, Gitanjali, for your introduction and for bringing this panel together.
And thank you ANZSIL organisers, for inviting me to participate in this session.
It is an honour to share the stage with colleagues from the Kingdom of Tonga and the Solomon Islands.
And also, Eran, who Timor-Leste has worked with for around a decade and who has been a great support to us in our efforts to secure our maritime sovereignty.
I am the only non-lawyer on the stage. In fact, I may be the only non-lawyer in the room.
But I can tell you that international law holds a central place in the story of our country.
After a long struggle for independence, it was through international law that we achieved our sovereignty.
After around five centuries of Portuguese colonial rule, and following the Carnation Revolution in Portugal, we declared our independence on 28 November 1975.
Nine days later, after being given the green light by Australia and the United States, Indonesia invaded our country.
What followed was 24 years of brutal military occupation in which a third of our population were either killed, disappeared or died of war induced famine and disease.
The invasion and occupation were illegal under international law.
The occupation was denounced by numerous resolutions of the United Nations General Assembly.
Australia was the only country in the world to give de jure recognition of Indonesia’s sovereignty over our country.
Australia did this to secure rights over our oil and gas resources, while our people were dying.
We fought a guerilla war against the occupiers, led by our current Prime Minister, Xanana Gusmão.
But we knew that we could never win militarily against Indonesia, a giant compared to our small country.
We were alone fighting in the jungle while the Indonesian military was being supplied with sophisticated weapons by the West.
We knew that our only path to independence was through the international community and international law.
International law provides the rules – and the language – by which States relate to each other.
While international law is often ignored – especially by the large global players – we knew that eventually it would prevail.
After 24 years of struggle, we were able to use international law and the United Nations to secure a referendum on our future. In August 1999 our people voted overwhelmingly for independence.
On 20 May 2002, we officially regained our independence and became the 191st member of the United Nations.
Because we achieved our sovereignty through international law it holds an important place in our national story.
That is why when we had our long running dispute with Australia about our maritime boundaries we turned to international law.
Coastal states with overlapping claims normally have two options for resolving their maritime boundaries: bilateral negotiations or submission to a court or tribunal for a binding decision.
However, on the eve of our independence, Australia made a declaration to opt out of the binding jurisdiction of UNCLOS. It did this to prevent us from enforcing our rights under international law.
And then Australia refused to negotiate with us.
This was not an abstract matter of international law for the Timorese people. We saw a wealthy and powerful country blocking our rights under international law.
And these were rights that we needed to secure our political and economic sovereignty.
There were mass protests in our capital Dili in which tens of thousands of people protested loudly, and peacefully, outside the Australian Embassy.
Again, Timor-Leste turned to international law for a solution.
On 11 April 2016, Timor-Leste became the first country to initiate a compulsory conciliation under UNCLOS.
Compulsory conciliation is a mechanism that can be used by coastal States where a neighbour has withdrawn from the binding dispute settlement procedures under UNCLOS.
In short, conciliation under Article 298 and Annex V of UNCLOS is a non-binding procedure in which a panel of conciliators assists in trying to achieve a settlement.
Despite Australia’s initial challenge to the Commission’s jurisdiction and following the Commission’s unanimous decision that it had jurisdiction to assist the parties, Australia had little choice but to participate in the process.
After a series of intense negotiations, we were able to achieve a maritime boundary treaty with Australia.
The Treaty we have signed provides us with permanent maritime boundaries with Australia.
Once again, we used international law to level the playing field. It allowed us to prevail in a David and Goliath struggle.
And once again, it reinforced our belief in the power of international law.
In most countries, international law probably doesn’t mean much to the average person. But in Timor-Leste we all hold it dear.
And so, when the Secretary General of the United Nations visits Timor-Leste in August this year, on the 25th Anniversary of our Independence Referendum, it will be a huge national event.
Given the significance of international law to Timor-Leste, when the issue of climate change was brought to the United Nations with a resolution to refer the issue to the International Court of Justice for an advisory opinion, Timor-Leste supported and co-sponsored the resolution.
In addition, as you know, the same issue was submitted by COSIS to ITLOS for an advisory opinion.
Timor-Leste participated in both processes.
Like other Small Island Developing States, Timor-Leste’s identity is anchored in the sea.
We depend on the ocean for our food and our livelihoods. Around 80% of Timorese live in coastal and low-lying areas.
Timor-Leste is vulnerable to climate change. As a Small Island Developing State and designated as a Least Developed Country by the United Nations, we have limited resources to mitigate and adapt to the impacts of climate change.
A natural disaster costs us lives and sets back our development progress.
For example, the devastation caused by Tropical Cyclone Seroja in 2021 highlighted our vulnerability, with the loss of over 40 lives, over 4,000 houses destroyed and huge damage to our economy.
Small Island Developing States are the most vulnerable to the effects of climate change despite being the least responsible for it. Collectively we contribute less than 1% of global greenhouse gas emissions.
Various international instruments, such as the UNFCCC, the Kyoto Protocol, and the Paris Agreement, have committed developed countries to support developing countries in mitigating and adapting to the effects of climate change.
But they have not done enough. In fact, they have failed to even live up to the promises they have made. This includes falling far short on their contributions to the climate change Loss and Damage Fund.
Timor-Leste occupies a unique position among SIDS in that we rely on oil and gas revenue to build our nation.
Therefore, we are acutely aware of the balance between our right to development and the need to protect our marine environment.
In pursuit of sustainable development, Timor-Leste has taken proactive steps to mitigate the effects of climate change.
We have submitted our Nationally Determined Contributions (NDCs) and National Communications to the UNFCCC, outlining our commitments to reduce greenhouse gas emissions and adapt to the impacts of climate change.
Recognising the critical role of forests and coastal ecosystems, we have banned tree felling and started mangrove restoration projects.
The government has also prioritised the development of a sustainable blue economy.
In our submission to both the ITLOS and ICJ advisory opinions, Timor-Leste emphasises the principles of the right to development, common but differentiated responsibilities and respective capabilities, and the imperative of climate justice.
We strongly advocate for climate justice, stressing that developed countries, historically responsible for the majority of global emissions, should shoulder a greater burden in mitigating climate change and assisting vulnerable nations in adaptation efforts.
On 21 May this year, the International Tribunal for the Law of the Sea delivered its opinion on the obligation of States to protect the oceans from the effects of climate change.
The Advisory Opinion recognised that greenhouse gases contribute to marine pollution.
It held that while States have the right to exploit their natural resources, they also have an obligation to protect the marine environment, tailoring their policies to their capabilities.
The decision also recognises that developed countries have a responsibility to provide assistance, including financial support.
This judgment was another victory for small island states in the international legal context. Together we successfully brought critical issues before the Tribunal.
Timor-Leste has been a vocal leader within the group of Least Developed Countries, particularly in advocating for the establishment of a Loss and Damage Fund.
To achieve justice and ensure the survival of all people on this planet, developed countries must move away from business as usual and take decisive action on climate change.
We view the forthcoming advisory opinion of the International Court of Justice as an important part of the campaign to achieve climate justice.
Again, small developing countries can turn to international law as a mechanism to level the playing field against the developed world.
Of course, we know from experience that international law is far from perfect.
We understand that international law is often imposed on small countries by developed countries when it suits them, and ignored when it doesn’t.
However, despite its shortcomings, for small countries international law is sometimes our only option.
And for Timor-Leste, international law has delivered for us against great odds.
So please let me finish by saying that international law is important and that we should do what we can to make it work better.
We must all hold on to the promise of justice that international law provides.
Thank you very much.