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Impacts of Economic Globalisation on Human Rights in Australia’s Foreign Policy : A Case Study of East Timor
Hiromi Koizumi University of Wollongong
Koizumi, Hiromi, Impacts of Economic Globalisation on Human Rights in Australia’s Foreign Policy : A Case Study of East Timor, M.A.-Res. thesis, History and Politics, University of Wollongong, 2007. http://ro.uow.edu.au/theses/650
This paper is posted at Research Online. http://ro.uow.edu.au/theses/650
Impacts of Economic Globalisation on Human Rights in Australia’s Foreign Policy : A Case Study of East Timor
A thesis submitted in fulfilment of the requirements for the award of the degree
Masters – Research
from
UNIVERSITY OF WOLLONGONG
by
Hiromi Koizumi
Master of Arts, University of Wollongong
History and Politics Program, CAPSTRANS 2007
Thesis Certification
CERTIFICATION
I, Hiromi Koizumi, declare that this thesis, submitted in fulfilment of the requirements for the award of Master – Research, in School of History and Politics, and CAPSTRAN University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The Document has not been submitted for qualifications at any other academic institution.
Hiromi Koizumi
22 August 2007
ii
CONTENTS
Introduction 1
Chapter 1. Human Rights, Foreign Policy and Globalisation 15
Chapter 2. Human Rights and Foreign Policy in Australia 58
Chapter 3. A balance between Australia’s strong economic 111 concerns and human rights: A case study – negotiations over maritime boundaries in the Timor Sea
Conclusion 161
Bibliography 173
iii
MAP
3.1 Australia-Indonesia Boundaries (Seabed 1972, 117 Fisheries 1981 and EEZ 1997)
3.2 The Timor Treaty Gap 119
3.3 Disputable maritime boundary 144
TABLES
2.1 Australian Prime Ministers and Ministers for Foreign 61 Affairs and Trade, 1972 to 1996
2.2 International human rights law: Australian legislation 68-69
2.3 Australian contribution to OECD aid program 97
2.4 Comparison of AusAID - policing and security 106
3.1 Revenues of East Timor and Australia 151
3.2 Economic indicators in East Timor 152
iv Abbreviations
ALP Australian Labor Party
APEC Asia-Pacific Economic Cooperation
AusAID Australian Agency for International Development
CMATS Treaty on Certain Maritime Arrangements in the Timor Sea
DAC Development Assistance Committee
DIMIA Department of Immigration and Multicultural and Indigenous Affairs
EEZ Exclusive Economic Zone
ETTA East Timor Transitional Administration
GDP Gross Domestic Product
ICCPR International Covenant of Civil and Political Rights
ICJ International Court of Justice
ICSER International Covenant on Social and Economic Rights
IMF International Monetary Fund
INTERFET International Force East Timor for Peace Enforcement
IUA International Utilization Agreement
JPDA Joint Petroleum Development Area
MNC Multinational Corporation
MOU Memorandum of Understanding
NATO North Atlantic Treaty Organization
NCC National Consultative Council
NGO Non-government organization
ODA Official Development Assistance
v OECD Organization for Economic Cooperation and Development
SAP Structural Adjust Force
TFET Trust Fund for East Timor
TNI Indonesian Armed Forces
TST Timor Sea Treaty
UDHR Universal Declaration of Human Rights
UN United Nations
UNAMET United Nations Mission in East Timor
UNCLOS United Nations Convention of the Law of the Sea
UNDP United Nations Development Programme
UNHCR United Nations High Commissioner for Refugees
UNTAET United Nations Transitional Administration in East Timor
WTO World Trade Organization
ZOC Zone of Cooperation
vi Abstract
The purpose of this thesis is to explore the complex relationships between Australia’s approaches to human rights (HR) and to globalisation. This thesis examines the ways in which global economic activity, otherwise called economic globalisation, has influenced or determined Australia’s foreign policy with regards to HR. This research investigates the complex relationships between Australia’s Human Rights in its foreign policy and globalisation since the 1970s, by exploring the interaction between ongoing globalisation and Australian foreign policy. Its central argument is that Australia’s foreign policy with regards to HR has been compromised by globalisation in the pursuit of its own national economic interests. Australia’s lack of morality under its foreign policy has failed to take a state’s moral obligation with regard to human rights, as international human rights principles and agreements require. This thesis critically analyses a nexus between the support and promotion of the HR approaches of Australian foreign policies since the 1970s on the one hand, and Australia’s enthusiastic embrace of economic globalisation, on the other. It is argued that Australian foreign policy has been aimed at establishing an approach toward globalisation which gives priority to national business interests. This has resulted in inconsistent approaches to HR, especially with regards to Australia’s nearest neighbour, East Timor. By exploring approaches of Australian Governments with regards to HR, especially some maritime boundary treaties of the Timor Sea that Australia has conducted and concluded, this thesis examines and shows the way in which Australian foreign policy has been shaped by economic global views, which in turn have had increasingly adverse effects on its international human rights policies. The case study of Australia’s policies on East Timor reveal increasing inconsistency between HR principles and actions.
vii Acknowledgements
I would like to acknowledge to everyone who supported and encouraged me for this thesis. Thank you very much to Dr. Greg Melleuish, the primary supervisor of my thesis for good suggestions and inspiring me over the line to undertake my thesis. It was such pleasure that Greg showed me what is an academic task, with his insightful advice. Very special thanks to Professor, Adrian Vickers, my second supervisor of my thesis for long time. I could not produce my thesis without his support in providing insightful advice, valuable comments, helpful guidance, and much encouragement. It is deeply appreciated. Thank you very much to Dr. Kate Hannan, my previous supervisor, for her support and wise suggestions in undertaking my research into Australian foreign policy and human rights. Also many thanks to Dr. Di Kelly for looking after me at the final stage. Thanks to those who read and checked my English ; Dr. Ken Mclean who totally supported me. Ken checked not only English but also suggested my thesis line and advised researching. Thanks to Peter Cusack for much support. Many thanks also to Fiona Sampson, who is also my close friend, who supported and encouraged me over time. Thanks to many colleagues in this university for advice and encouragement. Many thanks to Susan Engel, who was so kindly to offer advice and encourage and also to Ross Tapsell, who shared my office before, for great encouragement and help. Thanks to many friends in both Australia and Japan for keeping good friendships. Thanks to my families in both Japan and Brazil for their kindly support over time. Finally, very special thanks to my lovely daughters, Hanae and Tamae for their enormous love, support and patience. I would like to devote my thesis to my dead husband.
viii Introduction
Human Rights and foreign policy under Globalisation
In 1948, Human Rights (HR) were identified as a set of universal moral doctrine under the Universal Declaration of Human Rights (UDHR). Article 1 of the UDHR officially states all human beings are born equal in dignity and rights. Articles 2 states HR are entitlements to be protected regardless of the structure or status of the individual state.1 Contemporary HR are a modern Enlightenment version of the natural rights derived from philosophical moral views that respect the ideology of irremovable, inalienable, universal, unavoidable and absolute rights.2 Contemporary formal HR are composed of internationally accepted norms and legal instruments. Individuals acquire them as naturally born human beings, regardless of any differences of variations such as race, colour of skin, sex, language and religion. 3 Universality is emphasised, and the United Nations (UN) Charter claimed that states or governments with high morality have an obligation to positively protect and promote HR. However, since the UDHR has been developed and implemented, there have been increasing discussions and arguments about HR, especially regarding universality. For example, there has been the prominent criticism against universality drawing on the argument of cultural relativism, which has dominant in non-western states. Those latter states which contest universality criticise universal ideology that is supported by western hegemonic power. The debates between universalists and relativists are directly link to the criticism that domination over HR implementations or practices by the West. Those states criticise the HR implementation by the West, as being ‘inconsistent’ or
1 Universal Declaration of Human Rights, Article 1 and 2 of 1948. 2 Maurice Granston, ‘What Are Human Rights?’, in Walter Laqueur and Barry Rubin (eds), The Human Rights Reader, Meridian, New York, 1979, p.17. 3 Universal Declaration of Human Rights, Article 1 of 1948.
1 holding ‘double standards’.4 They argue that Western states use HR as a means of propaganda and political purposes, and for pursuing their national interests. In many instances, the political processes have failed to give adequate importance to states’ HR obligations, and consequently the ethical and moral responsibility of states is often in conflict with other states’ interests. Despite such criticisms, this thesis, gives primacy to the importance of universality as a framework of fundamental HR as an international standard, albeit in different ways. From 1948, international human rights became increasingly expressed as a major concern for independent sovereign states. The relationship between HR and foreign policy is often brought into sharp focus by commentators and politicians. Many studies note that HR are not always given a high priority in states’ foreign policies. There is often an impression that governments only give lip service to HR, and that states’ foreign policy with regards to HR are criticised as erratic and hypocritical.5 Even those governments that claim HR as a central part of their foreign policy often fail to give HR evident priority over other considerations. It is thus arguable that states do not always shape their foreign policy according to moral considerations in accordance with the UDHR’s principles.6 Beside the philosophical reference of universality, there may be multiple reasons for states’ refusal to incorporate the universal approach to the their operational foreign policies. States sometimes refuse to adopt international HR based on state sovereignty. Contemporary HR are emphatically universal, and emphasise an ideology of non-discrimination, beyond the traditional sovereignty of states. Sovereignty is also supported by realist views that often deny HR principles in a state’s foreign policy. This is further strengthened by a distinction between citizens and non-citizens. While governments do apply the internal promotion of HR for their citizens, states do not often consider non-
4 R. Bauböck, ‘Special and General Rights’, in Transnational Citizenship, Edward Elgar, Aldershot, England, 1994, p.243. 5 Michael Freeman, Human Rights: An interdisciplinary approach, Polity Press, Cambridge, 2002. p.51. 6 Richard Falk, Human Rights and State Sovereignty, Holmes & Meier Publishers Inc., New York, 1981, p.156.
2 citizens’ HR.7 States often emphasise their sovereignty, arguing government’s obligation to protect their territory and citizens under international law. The interaction of HR and globalisation has been given much more attention recently in terms of the impact of globalisation. This last is a complex and multi-dimensional process that has become a central principle for states in terms of the multifaceted nature and potential influence on the role of states. For example, since the UDHR has established, the ideology that HR are above and beyond a country’s sovereignty became popular with emphasising global citizenship. 8 In this regard, global HR awareness has given a new challenge for states to ensure international HR concept, by ratification of the UDHR and then and legislation in domestic law. With globalisation, the new mainstream of HR, namely humanitarian intervention, has become apparent. Until the end of the Cold War, there was little recognition of humanitarian intervention in terms of strong support of states’ sovereignty under international human rights law. Yet, contemporary humanitarian intervention has presented many problems for states when forming their foreign policy. A sceptical view of intervention arises because of the diversity of perceptions about the content of HR. Critics point out that, in particular, humanitarian interventions by advanced western countries have shown a tendency toward a post-colonial reassertion, that is regarded as a fundamental HR violation under the UN Charter. This tendency raised an intense debate over the appropriateness of the role of intervention with regard the nexus between HR and globalisation. Globalisation has had an impact on states’ foreign policy because it has become an ideology beyond the traditional sovereignty of the states. Nevertheless, globalisation has not reflected only a positive view. Globalisation has created new problems with regards to HR issues in states. It is said that globalisation has resulted in the shrinking of states’ power, 9 evident for example in the mobility of people and money. At the domestic
7 Anthony Giddens, The Nation-State and Violence: Volume Two of A Contemporary Critique of Historical Materialism. Polity Press, Cambridge, 1985, p.28. 8 Bauböck, op.cit., p.247. 9 Jan Nederveen Pieterse, Globalisation & Culture: Global Mélange, Lanham: Rowman & Littlefield Publishers, Inc., Lanham, 2004, p.10.
3 level, states have faced many global struggles such as AIDs, drugs, migration and refugees each of which require solutions at an international level. Many states have special rules to distinguish between their citizens and non-citizens. It is these aspects of HR and foreign policy that are dealt with in this thesis. The thesis examines states’ foreign policy with regards to HR as mediated globalisation. Its argument is that states’ foreign policies have been continually shaped by globalisation and devised and developed in response to, globalisation. In particular, from an economic perspective of the effect and ideological pressures of globalisation, have been identified ‘economic globalisation’. In particular, scholars have noted the impact of economic globalisation on HR, in terms of the trend towards a free market economy, with the apparent implication of a ‘more open democracy’. Economic globalisation has changed the role of states totally in terms of the need to accommodate policy shifts towards an open, market-oriented policy directly in states’ foreign policy as the first priority.10 This has resulted in affecting HR issues. The thesis then, is concerned with economic globalisation and HR and the impact of economic globalisation on states. With the rise of the New World Order in the 1970s, an encouragement of trade policy became prominent and has become increasingly crucial with the increased commitment to the neo-liberal agenda. 11 Economic globalisation derives from the neo-liberal ideology that accommodates global trade system, and is applied by neo-liberal agents such as non-state agents such as Multinational Corporations (MNCs) as well as major international financial institutions (IFIs) such as the International Monetary Fund (IMF) and the World Bank, and the World Trade Organization (WTO).12 Those supporting neo-liberal ideology basically assert that economic globalisation leads to HR
10 Stephen Bell, ‘Globalisation, Neoliberalism, and the transformation of the Australian state’, Australian Journal of Political Science, 32(3), 1997, p.353. 11 Stewart Firth, Australia in International Politics: An Introduction to Australian foreign policy, 2nd edition, Allen & Unwin, St. Leonards, NSW, 2005, p.106. 12 Scott Burchill, ‘Liberalism’, in Scott Burchill, et.al (eds), Theories of International Relations, 2nd edition, Palgrave, New York, 2001, pp.58-59.
4 improvement, claiming that it promotes democracy and enables people to have access to economic benefits and to promote political and civil rights.13 However, assessments of neo-liberal ideology have also identified major negative impacts on HR. While neo-liberal ideology has demonstrated large- scale external investment in order to obtain benefits, such approaches can also be highly destructive of HR. Many studies have shown that MNCs, major global institutions and rich states which accept economic globalisation in the West, have not paid much attention HR. 14 Non-state agencies, in particular, have claimed that MNCs’ investments contribute to develop economies and HR in developing countries. Yet, they are notorious in creating neo- colonisation in developing countries, and they have also caused a serious economic unstable conditions in particular developing countries. Additionally, the macroeconomic stabilisation and development program funding by the IFIs has been denounced as being totally vulnerable and destroyable.15 It also resulted in HR violations in the borrower developing countries. Critics point out that neo-liberal ideology support has had a negative impact on HR, and that ‘exploitation’ is best seen as resting on fundamental characteristics that can be understood by the role of neo-liberal agents. This thesis, therefore, asserts that establishing or confirming neo-liberal policy in states’ foreign policy has led to negative impacts on HR. This is because economic globalisation associated with neo-liberal ideology has shifted state interests away from HR issues in favour of economic goals. Neo-liberal policy has impacted on states foreign policy. States that are involved with economic globalisation, have created unprecedented serious dilemmas between national interests and promoting HR values in their foreign policy, because the trade rules that have been formulated and negotiated
13 Rhoda E. Howard-Hassmann, ‘The Second Great Transformation:Human rights Leapfrogging in the Era of Globalisation’, in Human Rights Quarterly, 27(1), 2005, The John Hopkins University Press, p.8; Clair Apodaca, ‘The Globalisation of Capital in East And Southeast Asia’, Asian Survey, 42(6), 2002, p.890. 14 David Kinley and Sarah Joseph, ‘Multinational corporations and human rights’: Questions about their relationship, Alternative Law Journal, 27(1), February, 2002, p.7; Human Rights Watch, ‘Corporations and Human Rights’, http://www.hrw.org/about/initiatives/corp.html [Accessed 10 July 2006] ; M. Lane Bruner, ‘Global constitutionalism and the arguments over free trade’, Communication Studies, Vol.53, 2002, p.26. 15 Robert McCorquodale with Richard Fairbrother, ‘Globalisation and Human Rights’, Human Rights Quarterly, 21, 1999, p.743.
5 directly and indirectly on HR. Indeed, neo-liberal features are integral to states’ foreign policy with regards to HR, especially rich western industrial countries. Those western states’ foreign policies are regularly accused of ‘inconsistency’ or ‘double standards’ in the area of HR. Neo-liberal ideology is seen as utilising HR agenda in states’ foreign policy. The linkage between trade and HR standards has also become evident, while foreign aid programs have become a powerful tool for framing trade policy issues. However, many foreign aid programs present political and economical considerations as investment rather than genuine humanitarian aid or fundamental HR issues. Foreign aid has thus brought some destructive results especially where a new conditionality of aid to recipient countries has followed ideals of neo-liberal ideology. 16 This thesis examines aspects of states’ foreign policy with regards HR and trade, such as aid programs in order to examine the extent to which such policy has impacted on international human rights issues.
Australia’s foreign policy with regards to Human Rights under globalisation
Taking accounts of these issues, this thesis focuses on contemporary Australian foreign policy with regards to HR under globalisation. Australia has adopted and recognised the universality of international human rights law and implemented human rights treaties since the UDHR was established. With increasing global HR awareness, Australia has ratified and adopted the UDHR, and has supported and made contributions to a broad range of the UN’s HR. In the early 1970s, the Whitlam Government took Australia’s first step towards taking a positive approach to formal international human rights. The Fraser Government which succeeded Whitlam upheld that HR policy. The Australian Labor Party during 1983-1996 went further to take more international treaty obligations seriously by ratifying some HR treaties and enforcing these with federal legislation in many ways.
16 Bruce E. Moon, ‘The Foreign Policy of the Dependent State’, International Studies Quarterly, 27, 1983, p.321.
6 However, Australian HR approaches were also accused of inconsistency and ‘megaphone diplomacy’. 17 There have been increasing criticisms that Australia’s policies have undermined the practical implementation of HR since the Howard Coalition Government came to power. Critics point out that Howard Government has overridden Australia’s good reputation of implementing HR that the Labor Party had engendered. Refusing to ratify some international treaties, and its treatment towards refugees, have exemplified the Howard’s Government’s international HR principles. According to the 1997 White Paper which originated from Australian foreign policy, the Howard Government emphasised Australia’s high economic priorities and unavoidable ongoing globalisation.18 However, the Howard Government has also been criticised as being too “narrow” or “self-interested” in its pursuit of national economic interests. 19 Economic globalisation has appeared to take priority since the 1990s, as the key objective in Australia’s foreign policy with regards to HR. This study deals with Australia’s HR approach from the perspective of globalisation. What is important is that the inconsistent approaches to HR have arisen because of priority given to economic factors based on Australia’s pragmatism. Australia’s foreign policy has been directed at advancing its national economic and business interests. Australia’s pragmatism and economic priorities have been shaped the HR approaches. It was remarkable that it was the Labor Party which embarked on economic globalisation in 1983. Some academics have often pointed out that Australia’s foreign policy has been affected by neo- liberal ideology and its implementation, by shifting towards an open, market- oriented policy directly.20 Thus Australia’s neo-liberal ideology has, arguably,
17 Marianne Hanson, ‘Human Rights’ in Marianne Hanson and William W, Tow (eds), International Relations in the New Century: An Australian Perspective, Oxford, University Press, Oxford, 2001, p.87. 18 Australian Government Department of Foreign Affairs and Trade (DFAT), Australia’s Foreign and Trade Policy White Paper, In the National Interests, 1997, http://www.dfat.gov.au/hr [Accessed 4 September 2004]. 19Ariadne Vromen and Katharine Gelber, Powerscape: Contemporary Australian Political Practice, Allen & Unwin, Criwsm, NSW, 2005, p150. 20 Michael Wesley, ‘Setting and Securing Australia’s National Interests: The National Interests as Values’, in Ian March (eds), Australia’s Choices: Options for a Prosperous and Fair Society, University of New South Wales Press Ltd., Sydney, 2003, p.167; Derek McDougall, Australian Foreign Relations: Contemporary Perspectives, Longman, South Australia, 1998, p.9.
7 led, inter alia, to reforms would have had both direct and linkage effects on HR approaches. In this regard, aid programs have reflected Australia’s linkage between HR and global trade. In this context, aid is examined as a guiding theme under economic globalisation. However, such a policy has demonstrated a negative impact on HR, especially on Australia’s neighbouring regional states. It Thus it is the nexus between human rights and economic globalisation in Australian foreign policies that are at issue here. In the same vein, Australia’s approaches towards East Timor have been of much concern, including the negotiation and conduct of the maritime boundary in the Timor. When the Timor Gap was created in 1972, Australia conducted and concluded some treaties with Indonesia and East Timor. In this context, there have been many issues which reflected Australia’s approaches to both HR and economic propriety in the formation of foreign policy, showing that Australia has undermined HR in East Timor. Tiffen asserts that, “East Timor is Australia’s greatest foreign policy disaster of the last quarter of a century”.21 Certainly in terms of policies on East Timor, successive Australian Governments did not exhibit, comprehensive and moral obligations that international HR requires of states’ foreign policy, especially with regard to the issue of maritime boundary. In the context of East Timor, Australia has continually dealt with the maritime boundaries even after East Timor’s independence. Australia’s approaches have opened many questions especially with regard HR. The issue of East Timor presents many HR related agendas in foreign policy, such as Australia’s policy change to shift to Australian-led humanitarian intervention for East Timor in 1999, Australia’s central role with the UN for East Timorese during the transition period, and Australian aid (AusAID) contribution. By exploring the Australian Governments’ statements and real actions and policies that have been implemented, those issues can reveal Australia’s approaches with regard to human rights and economic globalisation.
21 Rodney Tiffen, Diplomatic Deceits: Government, Media and East Timor, University of New South Wales Press Ltd., Sydney, 2001, p.1.
8 Even Australia’s humanitarian intervention in East Timor has raised questions about Australia’s motivation to rescue East Timor. This intervention was sharply criticised by other Asian countries on the basis that the primary motivation for such intervention was closely interwoven with a view towards the exploitation of oil and gas reserves in the Timor Sea. Moreover, a bilateral diplomacy to the new East Timor after independence has been criticised, on the basis that Australia again undermined HR of the citizens of East Timor.22 The negotiation of maritime boundary has been problematic after East Timor’s independence. Questions were raised about the Howard Government’s stance, and the extent to which the Howard Government’s policy had undermined HR of East Timorese. This thesis explores these issues within a case study framework in order to identify and analyse the extent to which Australia has affected HR in East Timor, particularly in light of Australia’s pragmatism and economic priorities. A more serious concern is that such HR stances might have led to neglect for the support and promotion of HR like the UDHR requires. Questions are raised regarding the extent to which Australian foreign policy with regards to HR has been influenced by globalisation with the objective of improving national interests, and the extent to which such Australian HR stances have demonstrated some negative approaches to HR. The purpose of this thesis is to explore the complex relationships between Australia’s HR approaches and globalisation. This thesis examines the most serious concerns related global economic activity, which is called economic globalisation and its impacts on Australia’s foreign policy with regards to HR. Its central argument is that Australia’s foreign policy with regards to HR has been compromised by its commitment to globalisation and business interests as the basis for foreign policy choices. In particular, since embarking on globalisation, Australia’s foreign policy has conformed more closely to the pattern of neo-liberal ideology that enhances global trade, and has undermined an understanding of how the state
22 J. P., Catry, ‘Australia’s Offshore Oil Grab in the Timor Gap’, in Monde diplomatique, December 2004, http://www.globalpolicy-rg/security/hatres/oil/2004/1200timorgap.htm [Accessed 16 May 2005].
9 could facilitate to implement international human rights. Globalisation has always been with Australia, and Australia has had its selective choices for enhancement of its national interests. Choices have also been available over the nature and intent of HR approaches as well. What is argued and shown here is that such selective choice of HR approaches has neglected to comply with central principles of the UDHR, such as equality and non-discrimination. As a point to note, Australia’s foreign policy has two important drivers: economic improvement and security. This thesis focuses on economic improvement. This is because some analysts have noted that Australian foreign policy has been primarily concerned with strong economic growth; therefore Australia has adopted and committed to economic globalisation. 23 Moreover, there have been some comments that Australia’s defence policy has directed at Australia’s long-term economic prospects.24 In general then this thesis will give greater weight to economic issues, than security. I believe that it is impossible to avoid the pressures towards globalisation, but this should not necessary be at major expense to HR. There is an increased anxiety noted by many Australian analysts with regard to the future of HR and its direction. Haigh argues that the state which denies HR is dysfunctional, and the lack of adequate HR is bad not only for business but for all other endeavours the state is seeking to pursue.25 Therefore, it is extremely important to examine critically the Australia’s Government’s foreign policy in order to understand how to develop strategy or well-balanced HR policy.
Method
This study will explore HR approaches and challenges Australia has faced as it has responded to globalisation and global competitive pressures. In order to
23 While, since 1901 until the 1970s, security was a dominant element of Australia’s foreign policy (Horner 1998 cited Vromen and Gelber, op.cit., p.155) ; Australia foreign policy was changed to promote economic prosperity due to the formidable economic difficulties. 24 Mark Beeson, ‘Symposium: Advancing the National Interests? : Trade and the National Interests’, Australian Review of Public Affairs, http://www.australianreview.net/digest/2003/04/beeson.html , 2003, [Accessed 7 July 2006]. 25 Bruce Haigh, The Great Australian Blight, Oxford Press, Sydney, 2001, p.118.
10 address my research questions, much of the research is library based and includes government policy documents, academic books, journals, publicly available articles and academic Web based articles. In Chapter 1, the literature review will outline the state of knowledge and arguments with regards to an ideology and practice of contemporary HR, states foreign policy with regards to HR, globalisation, globalisation, and impact of globalisation on the state’s role with regards to HR. Under globalisation, the ways in which HR issues has been involved in global trade are investigated. In Chapter 2, the approach taken in this thesis is to critically explore Australia’s HR approaches in global era through analysis of successive Australian government’s perceptions and approaches to HR. On the literature on Australia’s HR approaches, there have been increasing criticisms that Australia’s HR approaches are selective or inconsistent in terms of the pursuit of its national interests. This chapter examines Australian government’s official statements and political, legal and institutional arrangement with regards to international human rights. This chapter traces the changing priorities of governments from the Whitlam Labor Government to the Howard Liberal Government until 2006. Chapter 3 will develop these points through the case study which investigates the negotiation and conduct of maritime boundaries in the Timor Sea, and the effect of these. An investigation of Australian diplomacy over the maritime boundaries in the Timor Sea is very important as it provides the key to understand why Australian governments have disregarded HR and international law. Exploring the case of East Timor is a way of illustrating the extent to which successive Australian foreign policies have failed to the promotion and support of HR in terms of the pursuit of its national interests. Detailed data collection procedures and analysis will be included in case studies. Moreover, this thesis also pays considerable attention to the relationship between neo-liberal ideology that influence states’ approaches to global trade, and HR approaches. A specific concern is the extent to which Australia’s incorporation of neo-liberal economic approach has counteracted its actions or
11 policies for international human rights. This is appropriate because it tells the extent to which neo-liberal ideology has resulted in continuing HR violation in not only East Timor, but also elsewhere in developing countries. Thus, the contribution of the thesis is to show how Australian foreign policy with regards HR has been influenced by globalisation and towards enhancement its national economic interests, and that such policies have been problematic in affecting HR.
Thesis structure
The first chapter addresses the impacts of globalisation on HR and states’ foreign policy with regards to HR. After that, this chapter addresses the extent to which globalisation has influenced HR ideology and implementation, and state’s foreign policy with regards to HR. It concerns global economic activity, namely, economic globalisation, addressing the extent to which economic globalisation has changed the role of states with regards to HR. It also investigates the ways in which neo-liberal ideology has affected ideas about global trade which is a fundamental characteristic of economic globalisation. The second chapter elaborates Australia’s foreign policy with regards to HR under globalisation. This chapter examines the extent to which Australia’s foreign policy with regards to HR has changed ideationally over time and what Australian value, and see as the boundaries of Australia’s ethical responsibilities over the world. It addresses the influence of globalisation on Australia’s foreign policy with regards to HR. The first part examines the history of Australian governments’ support for, and role in, shaping HR with globalisation during the 1970s and 1980s, in order to examine Australia’s HR stances under globalisation. In this context, Australia’s giving priority to national interests and the acceptance of globalisation including global economic activities, are key concepts. A serious concern in this chapter is to focus upon the influence of economic globalisation on Australia’s approaches with regards to HR, since Australia embarked purposefully on economic globalisation. The chapter then gives a sketch of the current Australian
12 government’s foreign policy over HR since 1996, and explores further the nexus between human rights and foreign policy. It describes the Howard government’s HR approaches such as refugee treatment and its selective approaches to the UN treaties. It focuses on the Howard Government’s HR approaches related to improved national interests. Australia’s landmark, humanitarian intervention to East Timor is also examined to link case study in Chapter 3. Chapter 3 investigates the processes of negotiation of maritime boundaries in the Timor Sea. It also analyses the extent to which Australia’s approaches were formulated by economic motivation, rather than concern for human rights in East Timor. In so doing, it analyses the controversial maritime boundary agreements that Australia has negotiated. It is shown that Australia’s main purpose was to exploit oil reserves in the Timor Sea, rather than to protect the self-determination of the East Timorese. This chapter is composed of two parts. The first part examines approaches of successive Australian governments (from 1971 to 1996) towards the Timor Sea area before East Timor was independent. It provides an historical background of the dispute of maritime negotiations including the Law of the Sea. The second part then deals with the Howard government’s approaches towards the maritime boundary after East Timor became an independent state. It also explores Australia’s diplomatic approaches with preferable bilateral relationships with East Timor, which has also raised a series of questions about the efficacy and sustainability of social and economic progress and development in East Timor. The Timor Gap Treaty and other negotiations in controversial gas and oil fields are also examined. In conclusion, this thesis will clarify Australia’s foreign policy with regard to HR under globalisation, from the examinations undertaken throughout Chapter 2 and Chapter 3. Thus, the original contribution of the thesis is to explore the complex relationships between Australia’s HR approaches and globalisation, and to analyse Australia’s foreign policies in terms of its economic priority choices over HR. In particular, it will test the hypothesis that since Australia embarked on globalisation, Australia has been
13 propelled by global trade system to enhance its national economic interests over other principles or considerations.
14 Chapter 1
Human Rights, Foreign Policy and Globalisation
Australia’s foreign policy recognises international human rights law and supports international human rights treaties. Since the United Nations codified a set of universal principles in the Declaration of Human Rights (UDHR) in 1948, states have been expected to have a more positive approach towards international human rights, which means that they have an obligation to support and contribute to Human Rights (HR). However, HR issues are not always given a high priority, not only in Australia but also by other states. Few states see HR as occupying a central element in their foreign policy. Their records of HR implementation are criticised as being inadequate, unfair and often inconsistent. The ethical and moral responsibility of states is thus frequently questionable. HR in a state’s foreign policy has been controversial since globalisation gathered pace in the last quarter century or so. In particular, the role of states with regard to HR has been questioned since an accelerated globalisation after the end of Cold War. Globalisation has changed the world with complex and multi-dimensional processes and phenomena, evident in rapid changes in economics, people, media and communication, ideologies and technology. Therefore, it is said that globalisation has also changed the role of states. In particular, economic globalisation has not only changed the role of states, but also has had a negative impact on some crucial aspects of states’ foreign policies. Moreover, critics argue that Australia’s foreign policy has been dominated by economic globalisation, and its foreign policy has been biased towards economic priority. In so doing, HR has been neglected or deemed of lesser importance.1 Such priorities raise issues regarding the extent to which globalisation has had a negative impact on states’ foreign policy.
1 Tim Dunne, Cameron Hill, and Marianne Hanson, ‘The New Humanitarian Interventionism’, in Marianne Hanson and William T. Tow (eds), op.cit., p.93.
15 The focus of this chapter is on questions of HR and the impact of globalisation on the support and protection of HR in states’ foreign policies. This chapter examines the extent to which globalisation has influenced to the role of states’ foreign policy with regards to HR. The first part of this chapter outlines an overview of the relative importance given to international human rights, addresses the ideological basis and seeks to clarify what is meant by HR as defined by the UDHR. This Declaration is what the Australian government has accepted as a basic premise for their understanding of HR. However, the ideology of universality and the implementation of HR have been questioned by non-western states. The first part also addresses the purpose of universality to re-affirm the importance of HR. The second part then considers whether states sometimes prevent the implementation for the promotion of HR in their foreign policy in terms of countries sovereignty and globalisation. The third part examines how these elements have brought difficulties to states for the implementation of HR. The final part of this chapter outlines the definition of globalisation and its role, the role and impact of neo-liberal ideology and the role of neo-liberal policy agents. It also examines to extent to which economic globalisation has influenced the role of states with regard to HR.
Contemporary Human Rights
HR in foreign policy is an important part of states’ business. Since the UDHR was enshrined in 1948, states are expected to take a positive and directed action towards supporting international human rights law. However, HR issues are not always given a high priority in a state’s foreign policy. Firstly this section examines contemporary HR and its associated problems. HR are used as the “ultimate normative language of our age”.2 HR are postulated by the UN as imposing international moral duties and obligations on all its members. There is a common recognition that HR are indivisible and interdependent. Contemporary HR were strongly recognised for a belief in the
2 A. Belden Fields, Rethinking Human Rights for the New Millennium, Palgrave Macmillan, New York, 2003, p.1.
16 interrelation between peace and security after World War II as a reaction to the horrors of Nazism. 3 It was in this context that the UN produced a set of universal moral claims of human rights in 1948. HR provide a set of legitimate moral principles based on regulating geo- political order.4 The UDHR is a widely endorsed legal instrument. HR are interdisciplinary concepts which include moral concepts and legal norms. Baehar summarises HR as “internationally agreed values, standards or rules regulating the conduct of states towards their own citizens and towards non- citizens”.5 John Donnelly, a leading theorist of HR, also defines HR as “moral claims identified as the fundamental prerequisites for each human being leading a minimally good life”.6 HR may be potentially become norms of jus congens that defines validity of universality.7 The UDHR contains thirty articles detailing the diversity of rights such as the right to life, the right to work and right to rest. The central points of HR are that they are universal and inalienable and that individuals acquire them as naturally born human beings, regardless of any differences of variations such as race, colour of skin, sex, language and religion. 8 HR are seen as the foundation of freedom, justice and peace.9 Therefore, they are necessary in order to claim protection from things such as violence and neglect, and are intended to protect individuals from the abuse of power by government.10 The UN Charter claims that states or governments have an obligation to positively protect and promote HR. This was reaffirmed in 1993, at the Vienna World Conference on Human Rights.11
3 James Nickel, ‘Human Rights’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/right-human/ [Accessed 3 April 2005] 4 Fields, op.cit., p.1. 5 Peter R. Baehr, Human Rights:Universality in Practice, Macmillan Press Ltd., Hampshire and London, 1999, p.1. 6 Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd edition, Cornell University Press, Ithaca and London, 2003, p.156. 7 Camilla Elisabeth H. Kjeldsen, ‘Legal and Functional Universality’, in Kirsten Hastrup (eds), Human Rights on Common Grounds: The Quest for Universality, Kluwer Law International, The Hague, 2001, p.41. 8 Universal Declaration of Human Rights, Article 1 of 1948. 9 Universal Declaration of Human Rights, Article 2 of 1948. 10 Freeman, op.cit., p.15. 11 Article 5 of the UDHR in the 1993 Vienna Conference of Human Rights. Paragraph 1 of the Vienna Declarations states: “The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and
17 There are approximately 200 international legal human rights treaties which states could sign and observe, and of these 65 are based on the UDHR.12 The most important treaties are the 1966 International Covenant of Civil and Political Rights (ICCPR), and the 1966 International Covenant on Social and Economic Rights (ICSER).13 The UDHR and these two covenants are referred to as the International Bill of Rights, and they are regarded as the foundations of international human rights law. The prevention of genocide, elimination of racial discrimination and abolition of torture and inhumane treatment are the special attention of HR violations.14
The general idea of Human Rights
While international human rights emphasises states’ obligation under international law, HR are not merely legal or moral abstractions. HR under the UDHR are bound by diverse frameworks such as moral concepts, legal norms, political norms and international norms, and can be viewed in a number of ways including politically, legally, and sociologically. Nickel explains general ideas of HR as having some defining features. These ideas help to understand what concepts are involved in human rights ideology.15
observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond doubt.” 12 Freeman, op.cit., p.36. 13 The ICCPR and the ICESCR became open for signature in 1966 (DFAT, Human Rights Manuals, 3rd edition, pp.19-20) ; Part III, Article 26 states that ‘all persons are equal before the law and are entitled without any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. 14 Fields, op.cit., p.41. • The Convention on the Prevention and punishment of the Crime of Genocide (1951) • The Convention on the Elimination of All Forms of Racial Discrimination (1969) • The Convention on the Suppression and Punishment of the Crime of Apartheid (1973) • The Convention on the Elimination of All Forms of Discrimination Against Women (1979) • The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981), and • The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984). 15 Nickel, op.cit., ; Nickel describes eight defining features of human rights: political norms, moral and/or legal norms, numerous, minimal standards, international norms, high-priority norms, robust justifications and rights but not necessarily in a strict sense.
18 HR involve a moral conceptualisation. Donnelly asserts that HR are a self-fulfilling moral prophecy: “Treat a person like a human being and you will get a human being”.16 HR can become a shared norm of morality and this reinforces a feeling of common humanity, establishing a cohesive support for all people from political, legal and social abuse.17 Legal rights at the national level as well as and international law support this moral concept. HR, which are enshrined in legal norms, are central to international human rights law, meaning that member states are required to comply with these legal obligations at both national and international level. Kjeldsen remarks that HR have legal justification for universality on the grounds that HR should be integral to jus congens, and that HR are inherent to the UN Charter.18 Global commitment to the UDHR also reveals acceptance of the notion that HR are international norms. They are thus not just a matter of state discretion, but rather involve high-priority international norms covering all countries and all people in the world. With this regard, international human rights law is an important reflection on universality and HR at a global level.19 HR can also be seen as forming the basis for political norms with philosophical implications of morality. The political norms indicate how their governments should treat citizens and institutions in order to protect their citizens. They are distinguished from ordinary morality, which is concerned with interpersonal conduct.20 Acceptance of HR means that governments of states must not violate people’s rights, and that they must also ensure that others do not violate them, while also working to insure that everyone has full enjoyment of their rights.21 HR reflect at least minimum standards that every human community should try to reach as basic rights regarding life, food, clothing, shelter, rest, medical treatment, education and employment, irrespective of cultural or religious differences.22 Governments of states are
16 Donnelly, op.cit., p.15. 17 Nickel, op.cit., 18 Kjeldsen, op.cit., p.55. 19 Nickel, op.cit., 20 Nickel, op.cit., 21 The Vienna Declaration and Programme of Action 1993, cited in Howard-Hassmann, op.cit., p.1; Donnelly, op.cit., p.12 22 Nickel, op.cit.,; Michael F. Czerny, ‘Liberation Theology and Human Rights’, in Kathleen
19 required to establish minimum standards of individual’s life as good governance.23 HR are always associated with democracy. Democracy and HR share the same ideals of equal political dignity for all and empowerment of the people based on “rule by the people” 24 originated by the Greeks, meaning demo (people) and kratos (rule). 25 This is because democracy is regarded as an important element for the promotion of civil liberties. It advocates pluralism, free and fair elections, and respect of rule of law. Gindin argues that the lack of democracy is a narrow view of class and rigidity with regard to other forms of oppression. 26 The Vienna Declaration of 1993 reinforced the connection between democracy and HR, seeing them as independent of each other and mutually reinforcing.27 A fundamental question under the UDHR is why states should comply with a rule of international law.28 Natural law gives one certain indicator for a possible answer. HR have a long historical heritage with roots in philosophy. The philosophical moral view has contributed greatly not only to states’ legitimacy but also contemporary HR ideology. Many scholars assert that contemporary HR are a modern Enlightenment version of the natural rights that go back to ancient Greek philosophy. Historically, there was no term for “Human Rights”. Rather, HR were regarded as “natural rights” or “rights of man”. 29 This theoretical framework is a product of the idea of HR being derived from the Greek Stoics and Cicero with the idea of a universal natural law that was echoed in the universal moral doctrines of Christianity, and a version that dates back to ancient Egyptian, Greek, Roman, Babylonia, Hebrew
Mahoney and Paul Mahoney (eds), Human Rights in the Twenty-first Century, Dordrecht, Martinus, Nijhoff, 1993, p.36. 23 Freeman, op.cit., p.11. 24 Donnelly, op.cit., p.191;This means “the will of the people shall be the basis of the authority of government” (David Held, Models of Democracy, Polity Press., Cambridge, 1987, p.2). 25 Held, op.cit., p.2. 26 Sam Gindin, ‘Social Justice and Globalisation: Are They Compatible?’, Monthly Review, 54(2), 2002, p.10. 27 Freeman, op.cit., p.71. 28 Shirley V. Scott, International Law in World Politics, Lynne Rienner Publishers, Boulder London, 2004, p.88. 29 M. Granston, ‘What Are Human Rights?’, in Walter Laqueur and Barry Rubin (eds), The Human Rights Reader, Meridian, New York, 1979, p.17.
20 or Oriental civilisations.30 The natural rights are derived from philosophical moral views that respect the ideology of irremovable, inalienable, universal, unavoidable and absolute rights. Many great western philosophers elaborated upon natural rights. The English philosopher, Thomas Hobbes in the seventeenth-century distinguished between Rights (jus) and Law (lex) in terms of his concern for the problem of social and political order.31 John Locke addressed the individualist conception (which included property) of natural rights under his theological view. Locke assumed that ‘natural rights’ originated from God, and asserted that every human being had certain rights that derived from nature, and governments had an obligation to respect these natural rights.32 The modern conceptualisation of HR mainly concerns the relationship between governments and their citizen. This is based on Locke’s idea of the ‘political justification of limited government and popular sovereignty’. 33 Immanuel Kant provided a constitutional and legal framework based on the protest of individual liberty, and his moral philosophy continues to be very influential. Kant is well known as an idealist and his claim that a violation of rights in one part of the world is a violation everywhere, impacted on a discussion of humanitarian intervention in the post Cold-War period as solidarism. 34 Jean-Jacques Rousseau also advocated the priority of the individual.35 Their ideals were evident in the American War of Independence, the United States Constitution (the American Bill of Rights) in 1787, and the French Declaration of Rights of Man and
30 Bamidele, A., Ojo, Human Rights and The New World Order: Universality, Acceptability and Human Diversity, Nova Science Publishers, Inc., New York, 1997, p.84. 31 Freeman, op.cit., p.19; Hobbes recognised natural law as being vague, hollow and wide to the interpretation of rights. He asserted that the security of individuals should be guaranteed, or at least maximised, concluding that every human being has rights to life everywhere because of inherent nature as being human. He also recognised that right and law not only differed from each other but also were opposites because rights meant liberty, and law meant restrain. Therefore, Hobbes argued the importance of modify the legal positive view. 32 Second Treatise of Government in 1690. 33Trully, 1980 cited Michael Goodhart, ‘Origins and Universality in the Human rights Debates: Cultural essentialism and the challenge of globalisation’, Human Rights Quarterly, 25(4), 2003, p.946 ; Jack Donnelly repeats that the modern conception of human rights derives from Locke’ Second Treatise of Government, (Freeman, op.cit., 22). 34 Dunne, Hill, and Hanson, op.cit., p.94; Idealism is a theory of international relations that desires to support international human rights. 35 Fields, op.cit., p.34; Rousseau asserts that natural rights should associate with strong democratic conception in Social Contract in 1762.
21 Citizen of 1789.36 John Stuart Mill made a significant contribution on rights and individual rights, especially on the right to free expression. Other legal and political precursors of Enlightenment reflect the UDHR fundamentally classified into two distinct thematic categories of rights, with other possible categories appearing as well.
Parameters of Human Rights practice
HR practices are classified into three categories. The first category is referred to as ‘first generation rights’. These rights are civil (Articles 1 to 18) and political rights (Articles 19 to 21) of the UDHR and are regarded as the classic HR based on the Magna Carta in 1215, the declaration of the French Revolution of 1789, and the American Bill of Rights in 1787.37 These all emphasise the value of being human, and they define such civil rights as the right to life, protection against torture and political rights such as the freedom of expression and the right to vote.38 These rights respect individuals and allow individuals freedom. In a sense, these rights are interpreted as ‘negative rights’ because states are sometimes limited in certain actions to ensure the protection of an individual’s rights. However, states are required to undertake many more ‘positive’ actions by the promotion and support of HR such as training police and judiciaries, and establishing appropriate institutions.39 Under the first generation rights, those from countries which opposed universality denounced those of developed countries in the West which focus on the civil and political rights of individuals, and try to apply these assumed rights to developing countries with political and economic pressure. For instance, those opponent countries often criticise the Human Freedom Index (HFI) under the United Nations Development Programme (UNDP). The HFI indicates how states promote human rights issues, such as the rights to peaceful association and assembly and the rights to practise any religion.
36 Ojo, op.cit., p.11. 37 Baehr, op.cit., p.6. 38 Article 3 , 5, 19 and 21 of the UDHR. 39 DFAT, Human Rights Manual, 3rd edition, Commonwealth of Australia, Canberra, 2004, p.12.
22 Opponents claim these are biased towards the Western civil and political rights tradition that emphasises rights rather than duties, individual rather than collective rights, and, moreover, gives very little weight to the freedom of people and nations.40 On the other hand, those countries that respect collective rights such as India and Malaysia regard an emphasis on individual rights as leading to decay in moral values and weakening the social relations of nations. Those countries emphasise duty rather than rights.41 They would also argue that homosexuality, which in some Western countries is regarded as important element of personal rights, must be excluded as HR, because it contradicts their strong religious and cultural traditions. The second generation rights are concerned with social, economic and cultural rights as described in articles 22 to 28 under the UDHR. These rights are regarded as ‘positive’ or ‘distributive’ rights because they include equality and ending discrimination against vulnerable groups such as women and minorities, access to work, health care, food, education, and participation in cultural life, all of which are fundamental to the survival of a human being.42 These two categories are reflected in both the ICCPR and the ICESCR Covenants. Nevertheless, some developing countries argue that the West emphasises only civil and political rights and disregards social and economic rights. During the past decades, the UN Security Council applied economic sanctions programs that prohibited trade and financial transactions broadly to states where governments violated HR. They applied to Southern Rhodesia/Zimbabwe in the 1960s and 1970s, as well as, Haiti and the former Yugoslavia. Economic sanctions programs were expected to improve civil and political rights to states that violated HR against their citizens.43 However,
40 Cassess, 1992 cited Freeman, op.cit., p36; The UN introduced the concept of human development for the purpose of improvement of human rights in 1990 (C. Muzaffar, Human Rights and the New World Order, Just World Trust, Penang, 1993, p.2). 41 A. Vervoorm, ‘Human Rights’, in Re-orient: Change in Asian Societies, Oxford University Press, Melbourne, 1997, p.52. 42 ibid. 43 M. P., Malloy, ‘Economic Sanctions and Human Rights: A Delicate Balance’, The Human Rights Brief, http://www.wcl.american.edu/hrbrief/v3il/malloty31.htm [Accessed 15 May 2006]; Office of the High Commissioner for Human Rights, ‘The Human Rights Impacts of Economic Sanctions on Iraq’, Paper by Office of the High Commissioner for Human Rights for the meeting of the Executive Committee on Humanitarian Affairs on 5 September 2000, p.1.
23 questions have been raised as to whether sanctions could be considered effective or not for improving HR. Critics pointed out that economic sanctions were a forcing of western values of HR that emphasise political and civil HR priorities, while economic and social rights were disregarded. Those countries in Asia, Africa and Latin America recognise social and economic rights as being important for economic development and equity in their society, arguing that it is impossible to improve civil and political rights without improving social and economic rights.44 Another category of the ‘third generation rights’ appeared in the 1970s. A Czechoslovakian international official and university professor, Karel Vasak, advocated this rights of the division of HR into the three generations in 1979.45 The Third generation rights emphasise ‘solidarity’ or ‘group’ rights. These rights are also described as being against an ongoing global order that promotes impersonal markets, vast networks of trade, consumer capitalism and people’s identities. A number of developing and non-western countries brought these rights into international discussion of HR as the Third-World approach. In particular, former communist and Third World states have emphasised these rights, arguing the right to self-determination, to develop, to peace, to a clean natural environment, to one’s own natural resources and one’s own cultural heritage. While the UN General Assembly adopted a Declaration of the Right to Development in 1986, the term of the “third generation human rights” still remains largely unofficial. 46 However, these divisions were reflected in the creation of the international human rights framework. Western states substantially refuse the third generation rights, arguing that the views of the rights do not make sense. Western states assert those: 1. The term of ‘generations’ is not appropriate, because generations mean succession, therefore, so-called generations of HR do not make a sense what generations intend,
2. It is not clear who are the holders of the third generation rights, individuals, peoples, states or some combinations,
44 Muzaffar, op.cit., p. 2; The Proclamation of Tehran in 1968 stated to emphasis on economic and social rights, and cultural rights. 45 Karel Vasak, 1977 cited Carl Wellman, ‘Solidarity, the Individual and Human Rights’, Human Rights Quarterly, 22, The John Hopkins University Press, 2000, p.639. 46 Freeman, op.cit., p.47.
24 3. It is not clear what rights the bearers of these rights have, and
4. These rights are briefly covered in the ICCPR already.
Moreover, Western states argue that the third generations rights have the possibility of allowing authoritarian governments to violate established HR.47 In response to these critics, those who advocate the third generation rights, denounce western countries as reluctant to conceive these rights because of the dominant western values. Additionally, they are critical of Western states for trying to exclude the third generations rights which have resulted in western values being impacted on them.48
Debates over Human Rights
Thus, since the UDHR has been developed and implemented, there have been increasing discussions and arguments about HR. The normative foundation of HR seems highly important for the implementation of HR. Yet, some philosophers raise theoretical objections against HR. For instance, the ‘utilitarianism’ of Jeremy Bentham denied natural rights and moral claims in the light of legal positivists’ views that emphasise legal indispensability. 49 Edmund Burke denied the existence of natural rights.50 Karl Marx refused to acknowledge HR, arguing that the ‘rights of man’ indicates egoistic man, because rights separated individuals from the community. Marx claimed that individualism marginalised the community and argued that HR demonstrate merely an ideological attempt at expanding wealth and privileges.51 Despite Marx’s refusal to give HR recognition, it is also important to note that Marx’s notion emphasises humanity by rejecting the notion that people’s fate is determined by forces beyond human control.52 In this respect the dynamics of
47 Freeman, op.cit., p.48. 48 Baehr, op. cit., p.6. 49 Fields, op.cit., pp.24-28; Chris Brown, ‘Human rights’, in John Baylis and Steve Smith (eds), The Globalisation of World Politics, 2nd edition, Oxford University Press, Oxford, 2001, p.604. 50 Fields, op.cit., p.25; Freeman, op.cit., p.5. 51 Firth, op.cit., p. 245. 52 P. Worsley, Marx and Marxism, Ellis Horwood Ltd., Chichester, 1981. p.16.
25 capitalism and the role of neo-liberal ideology would be criticised as a violation against humanity. 53 Recently, a Scottish philosophiser, Alasdair MacIntyre also argued no HR exist and that, rather, a belief in HR was like belief in witches and unicorns, and was merely superstition.54 From a comparative perspective, the notion of cultural relativism emerged in the 1970s and early 1980s as a prominent and distinct opposition to the idea of the universality of HR. Relativists deny moral claims of human rights and criticise the concept of universality, arguing that human rights are products of western dominant concepts and so cannot be universal. Cultural relativists assert the importance of reflecting different cultural perspectives based on their notion that “culture is the principal source of the validity of a right or rule.”55 According to, Zbigniew Brzezinski, professor at Johns Hopkins University: Culture is now going to be the dividing line in the debate over the question of freedom and human rights. We are all familiar with the cultural argument. It rejects the notion of inalienable human rights on the grounds that this notion merely reflects a very provincial, Western perspective.56
Thus, the concept of cultural relativism claims self-contained socio- cultural entities associated with unique thought ways and system that are difficult to change. 57 On the other hand, supporters of universality point out the failure of relativists in providing a general objection to universalism. They argue that relativism implies tolerance of evil as well as good. Firth stresses that in order to have a logical consistency of relativist arguments, relativists must not criticise governments which starve, torture and execute their own citizens, and
53 Firth, op.cit., p.245. 54 Fields, op.cit., p.25; Freeman, op.cit., p.5. 55 Donnely, op.cit., p.90. 56 Z. Brzezinski, 1995, cited Janusz Symonides, ‘New Human Rights dimensions, Obstacles and Challenges: Introductory Remarks’, in Janusz Symonides (eds), Human Rights: New Dimensions and Challenges, Ashgate Publishing Limited, Aldershot, 1998. p.24; Brzezinski was also former US national security advisor during the Carter government. 57 Ken Booth, ’Three tyrannies’, in Tim Dunne and Nicholas J. Wheeler (eds), Human Rights in Global Politics, Cambridge University Press, Cambridge, 1999, p.49.
26 can see no reason to publicise HR abuses in countries other than their own.58 This is despite the fact that cultural relativist arguments often have been used to justify even the most severe violations of HR, such as genocide, torture and vulnerable positions of women and children, by arguing that this is our cultural traditions. Those countries indeed refuse the ideology of international HR and its implementations by emphasising their sovereignty. It is fair to say that universality of HR is not essentially ethnocentric. Rorty remarks that HR should not be regarded ethnocentric perspective for justification.59 It cannot be denied that cross-cultural contexts such as religious and cultural traditions are important factors to establish states law. Yet, a modern concept of HR was not based on any particular culture and religious belief. A different but equally valid notion of equality and human dignity are seen to exist within the Chinese religious and philosophical tradition such as Taoist and Confucian sources; in Buddhism, among Jews, Christians and Muslims.60 Those responsibilities for the implementation of human rights may need to develop a better understanding off different cultures. While culture is an important element of a person’s HR, it should not be incompatible with promoting universal HR and its implementation. What is more important to note is an inconsistent HR approach by western HR policy makers beyond the discussions between universality and culture relativism. This is because Western culture has been seen as practising ‘cultural imperialism’, connected to the universal claims attached to HR and has not been reflective of non-western cultures. Muzaffar states that, “it reflects the powerful psychological influence and impact of Western human rights groups upon their counterparts in the South”.61 Relativists pledged officially to support minority or regional votes on the WTO and rejected intrusive universal
58 Firth, op.cit., p.245. 59 Rorty 1991 cited Thomas Brudholm, ‘Conviction and Critique: Addressing the Sceptic’ in Kirsten Hastrup (eds), op.cit., p.30. 60 Ojo, op.cit., p. 45; The Dalai Lama argues that Buddhist concept and the UDHR need a same concern to aspire to protect all people everywhere. Aung San Suu Kyi in Mynmar who received the Nobel Peace Prize in 1991, states that human rights has same concept of early Buddhist ideas that conditional upon just rule in accordance with the law for the sake of the well being of the people (cited Vervoorm, op.cit., p.59). 61 Muzaffar, op.cit., p.13.
27 responses for setting labour and environmental standards. 62 In 1984, the Islamic Republic of Iran opposed the concepts of HR and asserted that Iran would not adhere to the UDHR.63 Moreover, after the Cold War through the 1990s, non-western countries, and in particular, some Asian countries, started to denounce western ideological universality as incompatible with Asian values. Those countries substantially refuse the ideology of international HR and its implementation in terms of their insisting of sovereignty and cultural traditions. The main argument was that the concept of HR originated in the western states.64 The Bangkok Declaration in 1993 was witnessed by many Asian countries and explicitly affirmed the universality principle. However, they refused to ratify the main human rights treaties, notably the ICCPR and ICESC.65 In addition to, Asian countries criticise the human rights implementation by the West as being ‘almost always selective’ and presenting ‘double standards’, which are made with predictable frequency. 66 These accusations seem to have particular salience in the West context.
An inconsistency of Human Rights in practice
The philosophical debates between Universalists and relativists are complex. Apart from theoretical frame, moreover, the debate about contemporary HR demonstrates not only a conflict between West and non-West, but also domination over HR implementations or practices by the west. There have been many criticisms that HR are part of the process of modernisation and of the evolution of the market taken by West. 67 Asian countries criticise the HR implementation by West, as being ‘double standards’.
62 Richard Lewis Siegel, ‘Universalism and cultural relativism: Lessons for transitional states’, in Shale Horowitz and Albrecht Schnabel (eds), Human rights and societies in transition: Causes, consequence, responses, United Nations University Press, Tokyo, 2004, p.56. 63 Freeman, op.cit., p.48. 64 Freeman, op.cit., p.48; Brown, ‘Human rights’, op.cit., p.610. 65 Freeman, op.cit., p.48. 66 Bauböck, op.cit., p.243 67 Nandy, 1983, cited M. Anne Brown, Human rights and the borders of suffering, Manchester University Press, Manchester and New York, 2002, p.35.
28 Those countries strictly denounce an ‘inconsistency’ of the implementation of HR by the UN particularly. Critics point out that the UN’s policy and implementation of HR cannot be carried out properly over the world. They argue that the standard of the UN’s HR is applied more tolerantly to particular groups rather than others. Bauböck asserts that HR are political rather than culturally neutral and HR do not identify civilised or enlightened behaviour totally. 68 Indeed, those propounding relativism, stress their anxiety over western encroachment or historically political intrusion of western recognition of HR.. Moreover, non-western states have had their doubts regarding a new doctrine of humanitarian intervention by Western states. Non-intervention was a basic principle before the end of the Cold War in the light of respect for state sovereignty under international law. In particular, Asian states support non- intervention since the end of World War Two, following a tragic historical experience of colonialism.69 Inasmuch as non-intervention remains strong stance, a greater global awareness of HR emerged when the Cold War ended in 1991. With a triumph of liberal democracy, the issue of HR and democratisation became an important part of the discussion of humanitarian intervention. Liberal supporters and many world citizens started to advocate humanitarian aid for nations where there was government abuse or failure. This approach has remained dominant.. An intervention per se differs widely from aid. Currently, the UN Security Council has important roles in authorising uses of force in a wide range of the case of humanitarian intervention, yet, there have been questions of balance between state sovereignty and humanitarian intervention regarding the extent to which states are able to interfere in the internal affairs of other states. Most serious concern is whether states have genuine concerns for the dignity of HR towards humanitarian intervention. Human right activists rightly condemn the deficiency of morality of states. Non-western states doubt the
68 Bauböck, op.cit., p.243. 69 Koji Watanabe, ‘The Debate on Humanitarian Intervention’, in Koji Watanabe (eds), Humanitarian Intervention: The Evolving Asian Debate, Japan Center for International Exchange, Tokyo, 2003, pp.1-2.
29 verity of humanitarian interventions by advanced western countries which have shown cynical or sceptical responses to genuine proclamations of HR such as intervention as a pretext for a post-colonial reassertion of western control as imperialism. It is important to note that humanitarian intervention should be required on moral base beyond a legal right. In this regard, Wheeler and Bellamy remark: The claim that humanitarian intervention is morally required is a much stronger one than the proposition that there is a legal right to engage in this practice because whilst the existence of a right enables action it does not determine it.70
Acting in humanitarian intervention is regarded as an action as being good global citizen agent. Moral obligation is legitimated as state responsibility as the UDHR claims for the world peace. Humanitarian intervention must be supported by a strong moral foundation of justice and high ethical principles. Critics point out that recent humanitarian intervention has been always selective. The North Atlantic Treaty Organization (NATO) military’s intervention in Yugoslavia over Kosovo in 1999 is a good example in this regard. The case of Kosovo was controversial because the NATO’s intention was not driven by humanitarian motives. A hybrid of concern of HR and realpolitik by some western states calculation was demonstrated. 71 Critics pointed out that the case of Kosovo did not consider the equally important needs of salvation and stability, because air attacks by the NATO caused mass exodus of refugees to neighbouring states such as the Kosova Albanians including Turks, Kurds and Chechens. Additionally, the US’s dominant power in the UN Security Council was criticised. As other Security Council, Russia and China did not endorse the NATO’s intervention, the US judged without agreements of Russia and China. 72 The case of Kosove demonstrated that powerful western countries governed the international community.73
70 Nicholas J. Wheeler, and Alex J. Bellamy, ‘Humanitarian intervention and world politics’, in John Baylis and Steve Smith (eds), op.cit., p. 476. 71 Watanabe, op.cit., p.7. 72 Wheeler and Bellamy, op.cit., pp. 481-483; Watanabe, op.cit., p.7. 73 Albrecht Schnabel and Ramesh Thakur, ‘Policy Brief: Lessons from the Kosovo Conflict’
30 Some states who HR violation were documented were under the threat of US dominance power over the world. Between 1990 and 2003, the US led UN economic sanctions against Iraq, Bosnia and Cuba were also denounced. Critics pointed out that economic sanction created hardship, and not only did not improve HR record but also increased hostility against the US.74 Thus, the implementation of HR generated by the US has shown inconsistency and not reflected the view of HR at all. In short, critics against universality denounce the principle not only theoretically but also practically. Critics point out that the claims of HR by western states are initially linked to specific, bourgeoisie class interests of the West.
Significance of universality
Ideas of HR and their implementation are problematical. Despite the emphasis of the significance of the universality of HR , it has not been well understood. I follow Donnelly’s assertion that “we should not overemphasize the power of the idea of human rights”.75 HR are neither perfect nor a panacea for a solution to every problem. However, it could be argued that HR have a robust justification and are gaining wide international support with high priority despite many imperfections in the general acceptance of HR. The ideology of universality deserves to establish a framework of fundamental HR as an international standard. As discussed earlier, today’s universal concept of HR respects individuals as moral agents because human individuals are vulnerable creatures in a community. Ojo asserts that, without HR, there is no community; it requires community members to uphold and promote the interests of the
in Albrecht Schnabel and Ramesh Thakur (eds), Kosovo and The Challenge of Humanitarian Intervention : Selective Indignation, Collective Intervention, and International Citizenship, The United Nations University Press, unknown publish year, http://www.unu.edu/p&g/kosovo_full.htm [Accessed 15 August 2006]. 74 Richard Falk, ‘Human Rights’, Foreign Policy, Mar/April 2004, 141, p.26. 75 Donnely, op.cit., p.187.
31 community. 76 Hence, seeking individual rights is neither egoistic nor anti- social and denies neither individual responsibility nor the value of community.77 As Asian and non-western countries point out, the western origin of universality, the western foundation of HR cannot be denied. In particular, the conceptual analysis of John Locke demonstrates a prominent discussion of western originality of HR based on Christian ideology. However, the origin of ideas of HR ideas are not important, because if Locke’s argument is justified, it should be noted that the basic concept of Locke’s cognition was to resist against state or religious strong authority that oppressed human dignity. It might be fair to say that Locke aimed ‘emancipation’ for human dignity. It is important to note that Locke’s natural rights did not impose western values on non-western values. For example, Locke argues that imperialism is immoral because imperialism itself denies political self-determination. 78 Goodhard states that some developing states also criticise Locke’s argument that emphasised individual property on the grounds that emphasising the rights of individual property has great possibilities to expand strong capitalism that provides economic inequality. Yet, Locke did not support capitalism and it should be noted that the argument of Locke, which was the importance of individual property, invoked an emancipation to eradicate some strong absolute power such as states or regions with oppressing customary rights and privileges.79 HR also present possibilities for world peace on the grounds the aim of HR is fundamentally to protect everyone. This is because international moral duties to others are emphasised in HR doctrines. Donnelly argues that universality has worth to be paramount as an indicator for world peace. 80 Therefore, it must be acknowledged that universality is based on non- discrimination and equality principles. There are agreements based on the common concept that there is ‘a common standard of achievement for all
76 Ojo, op.cit., p.85. 77 Freeman, op.cit., pp.74-75. 78 Freeman, op.cit., pp.103-108. 79 Trully, 1980 cited Goodhart, op.cit., p.946. 80 Donnelly, op.cit., p.28.
32 people and all nations’.81 It is important to recognise again that universality is fundamental, and if the aim is to keep international peace it should be allowed substantial space for variations in implementing the universal norm. The UDHR does not claim that Asian and non-western states should follow the ideology of universality blindly. I stress that HR are postulated to impose moral duties and obligations on all its members (states) and be regulated to what judges and other officials reasonably and sincerely believe is a common good conception of justice. Arguably, commitment to moral values is necessary. Concomitantly, excluding or disregarding HR is more dangerous and indeed wrong in principle. The values-oriented strategy that argues the implementation of international law and HR agreements remain for sustainable world peace, is required. The lack of basic HR recognition causes problems and social unrest. This is a reason that HR have robust justification within foreign policy and so deserve high priority. The next part goes on to examine the implementation of HR in states’ foreign policy in order to explore what has been states’ perceptions of HR in their own foreign policy.
Human Rights and foreign policy
Since the UDHR has required states’ positive HR implementations, yet there were many HR violations by authoritarianism at the national level such as Myanmar in the early 1970s until now, Uganda from 1972 to 1978, Rwanda in 1994, and many more such as Bosnia and Kosovo.82 In order to reflect HR concerns in states’ foreign policy, idealism argument emerged to emphasise the importance of existence of international law, societies and organisation of HR concerns for maintaining of world peace. An epistemology of idealism argues the importance of complying of HR as national interests on the grounds that it contributes to the continued
81 Baehr, op.cit, p.1. 82 Freeman, op.cit. p.102.
33 development of the international community, contending that the observance of HR and values from an optimal basis.83 Moreover, the central debate of the relationship between HR and foreign policy was brought into sharper focus by academic commentators and politicians. For example, in 1977, Jimmy Carter became president in the USA and introduced HR into his foreign policy. Some countries followed the USA, and recognised HR as a central part of the national policy. The Netherlands Government has included HR in its foreign policy since 1979. 84 The Netherlands adhered closely to the USA’s HR views in a Dutch White Paper.85 In 1997, the British Labour Government declared that HR were central to its foreign policies.86 Australia’s official approach to pursue HR was outlined in the White Paper on Australia’s foreign trade policy in 1997, In the National Interests. 87 States exhibit various approaches for the implementation of HR in their foreign policy. Foreign policy is always administered by state bureaucracies in terms of the complicated process in such organizations, only the most senior members of government sees and controls the policy process. Some powerful states have a coordinating mechanism existing within the Ministry of Foreign Affairs, where a Prime Minister may take the main roles for policy making processes. This narrow control has some negative aspects. Bureaucracy is inherently elitist and not associated with democratic solutions to HR problems. However, Donnelly argues that bureaucratic organizations may be significant to the success of states’ international human rights policies, because each branch within the foreign ministry may operate with very different baseline assumptions and expectations of HR. Freeman argues that governments may raise genuine HR issues in the light of political motives and, when political
83 Bailey, J., ‘Australia and Asylum-Seekers: Is a Policy of Protection in the “National Interests”?’, Australian Journal of Human Rights, 8(1), 2002, http://80-www.austlii.edu.au.exproxy.uow.edu.au:2048/au/journals/AJHR/2002/5.html [Accessed 18 March 2004]; Dunne identifies three patterns of principle of liberalism; liberal internationalism, idealism, and liberal institutionalism (Tim Dunne, ‘Liberalism’, in John Baylis and Steve Smith (eds), op.cit., p.165.) 84 Baehr, op.cit., p.84. 85 Donnelly, op.cit., p.162. 86 Brown, ‘Human Rights’, op.cit., p.608. 87 DFAT, In the National Interests, op.cit.,
34 motives lead to a narrow and selective concern for HR, appeals are sometimes made to HR principles that can be applied more widely.88 Under the Carter administration in the 1970s, the USA paid greater attention to foreign policy bureaucratic structures,89 and the use of such methods as diplomacy, publishing reports, conditioning access to trade or aid on HR improvements, economic sanctions and military intervention.90 HR in foreign policy are an important part of a states’ business. Donnelly argues that foreign policy must reflect upon a moral basis of HR doctrine for the contemporary international order. 91 There is essentially an internal and external dimension for HR in foreign policy. Internally, states try to support the implementation of HR and they do this by uniting with international human rights institutions and ratifying important treaties so they become an important part of international law. The states’ ratification of international human rights treaties indicates the standard to what extent states implement international HR. While a treaty itself does not need the approval of the states’ parliament, without parliament’s approval there is no effect for legislatures.92 Moreover, without legislatures, there is no strength for HR implementation within states’, because the power of legislatures varies widely into states as exclusive authority so that HR implement effectively. Therefore, states are required to ratify human rights treaties in their foreign policy, in order to influence more effective HR domestically. However, HR have created serious difficulties, in some particular foreign policy programs, which raises a question about whether it is capable of making compliance and obligation with regards to international human rights law, because global human rights institutions have no coercive power over the states. Externally, in diplomatic relations, states use bilateral, multilateral and transnational diplomacy to enhance HR. States normally use some methods such as HR dialogues, publishing reports and statements about HR conditions, conditioning access to trade or aid on HR improvements, economic sanctions, and military intervention.
88 Freeman, op.cit., p.9 89 Donnelly, op.cit., p.171. 90 Nickel, op.cit., 91 Donnelly, op.cit.,p.156. 92 Firth, op.cit., p.250.
35 States often find it difficult to balance these rights against other issues such as the economy and security. States sometimes have to face having the bilateral relationships with an authoritarian regime that violates democratic freedom of HR. States have to be concerned as to the extent they can intervene in other countries affairs whatever political colour. There are two factors that illustrate the difficulties of setting priorities in policy making: 1) HR rights issues conflict with the maintenance of friendly relations with foreign governments, and 2) human rights issues are associated with anxieties about endangering mutually friendly relations.93 These are sometimes likely to cause an inconsistent HR approaches in diplomacy. Probably, the importance of HR has not always been well reflected. The implementation of HR in foreign policy has widely differed in substance from the ideals that the UDHR requires. Some governments explicitly refuse to give their support because of such factors as cultural tradition, religion, stage of economic development and political culture. Foreign policy takes into account the diversity of social, economic and political life on a national level, it is difficult to assess the proper place for HR.94 Even those governments that comply with HR as a central part in its foreign policy, the record of implementation of HR are patchy. The support of HR in foreign policy is often inconsistent and demonstrates limited scope because the pursuit of national interests with security and economic interests tends to reduce support for HR. Morgenthau also argues: The principle of the defence of human rights cannot be consistently applied in foreign policy because it can and must come in conflict with other interests that may be more important than the defence of human rights in a particular circumstance.95
Foreign policy is normally constrained by states’ self-interests so that they are able to survive in the international arena, which is always associated with national interests such as security, economic interests, alliances and the relationship with neighbouring countries. Moreover, pursuing states’ national
93 Baehr, op.cit., p.85. 94 Falk, ‘Human Rights and State Sovereignty’, op,cit., p.10. 95 Morgenthau 1979, cited Donnelly, op.cit.,p.156.
36 interests is in strong connection with the electorate, meaning that economic prosperity stimulates public opinion. 96 Therefore, economic interests are placed on central issue to win election. Why then does foreign policy often fail to take positive action to promote HR? I would argue that there are two elements that have been problematic for HR in foreign policy. They are ‘sovereignty of states’ and ‘globalisation’. Richard Falk, professor of international law and practice at Princeton University, says, ‘sovereignty and human rights are linked in complex, contradictory ways’.97 Moreover, globalisation has impacted heavily, not only on HR issues, but also states’ foreign policy.
Human Rights and sovereignty
Foreign policy is always associated with sovereignty. Sovereignty is a complex, but central notion which is sometimes a barrier to implement international human rights standards. As discussed earlier, those committed to relativism disagree with universal HR. While this section investigates how state sovereignty also prevents implementation of human rights standards, Freeman also remarks on the difference between the cultural relativist’s recognition of HR and state sovereignty. According to Freeman, both reject HR ideology because of no- intervention in internal affairs. However, they are entirely different views and quite mutually incompatible. This is because the principle supporting state sovereignty implies support for universal HR as self-determining.98 International law supports each state’s sovereignty. Sovereignty is regarded as being central. Sovereignty is an important factor to show its power in the international arena. Thus, states potentially emphasise only the highest legislative authority within a bounded territorial space and retain a monopoly
96 Wesley, 'Setting and Securing Australia's National Interests: National Interests as Economic Prosperity', op.cit., pp. 166-167. 97 Richard Falk, ‘Sovereignty and Human Rights: The Search for Reconciliation’, Global Policy Forum, http://www.globalpolicy.org/nations/future/0312falk.htm, [Accessed 19 April 2006]. 98 Freeman, op.cit., p.109; Article 2(7) of the Charter of the UN.
37 on the capacity to ensure the authority legitimate. While sovereignty is a key concept in international law, its conceptualisation is often ambiguous and confused. Sovereignty is sometimes used even to justify violence and violation of HR by states. Falk asserts the dual nature of sovereignty in terms of the relations between sovereignty and HR. One nature is that sovereignty is a pretext so that governments are enabled to engage in abusive behaviour of their citizens, and the other one is that sovereignty can also be a strong shield to protect their citizens against a geo-politically motivated intervention to exert pressure on weaker states.99 Some states deny the main function of HR, pointing to a contradiction of state sovereignty. They argue that state sovereignty cannot be regarded as absolute under Article 2(7) of the UN Charter, because the purpose of HR legislation is to set limits on the power of states to infringe on the human rights of its citizens. For instance, China claims that their recognition of HR is to protect citizens of its own state rather than others.100 While idealism can be seen to reflect HR in states’ foreign policy, the epistemology of realism can explain why realism potentially refuses to reflect HR in states’ foreign policy in the light of relations between HR and foreign policy. With a realist framework, assumptions fundamentally hinder the promotion of HR in foreign policy. The realist’s view is regarded as being immoral. Realism points out that the morality that promotes international HR make no sense in an anarchic existing world. Realists see that international politics are a struggle between self-aggrandizing states in an environment of anarchy with no central authority by gathering individual sovereign states. They believe that state sovereignty represents states being politically independent of all other states with absolute highest legislative authority within a bounded territorial space. 101 Realists stress a mechanism known as the balance of power. So, for realists, the main actors are states rather than individuals. Realists regard human nature as being important, although they
99 Fork, ‘Sovereignty and Human Rights: The Search for Reconciliation’, op.cit., 100 Vervoorm, op.cit., p.52. 101 Tim Dunne and Brain C. Schmidt, ‘Realism’, in John Baylis and Steve Smith (eds), op.cit., p.143.
38 also believe that individuals human are potentially selfish.102 Realists regard that ethical conduct of HR as indeterminate. Thus, realists argue that overemphasising HR would be dangerous. Realists, therefore, deny the ideology of HR for the preservation of sovereignty. State leaders and policy makers generally stand on the assumptions of the realist paradigm on the role of morality and agency towards international political system, and they try to calculate rationally steps to promote their self- interested and profit seeking. Therefore, they hesitate to uphold indeterminate notions of HR issues as being irrational factor.103 Moreover, statism is one of the core elements of realism and argues that “states should not risk their soldiers’ live on humanitarian crusade” because states have responsibilities and duties to advance their national interests in order to protect their own citizens.104 A number of international human rights lawyers have continued discussion regarding the legality of forcible humanitarian intervention. Many of lawyers who are called ‘restrictionists’ asserts the illegality of intervention. Under this approach, a theory of pluralism argues that humanitarian intervention is illegal on the grounds of respect of sovereignty under the UN concept for keeping balance in the international field. 105 Therefore non- interference is an explicit rule, even if some states had HR violations against their citizens except Article 51 of the UN Charter regarding ‘self-defence’. 106 Thus, states adopt pragmatism to pursue self-interests, yet the self- interests frequently exclude concerns about HR.107 Thus, the pursuit of self- interests is incompatible with the promotion of HR. Yet, it is important to note that contemporary realists seek other national interests by utilising HR rather than excluding.108 This is a linkage to globalisation and the role of states with regards to HR.
102 Steve Smith and John Baylis, ‘Introduction’, in John Baylis and Steve Smith (eds), op.cit., p.4. 103 Dunne and Schmidt, op.cit., pp.142-143. 104 Wheeler and Bellamy, op.cit., p.477. 105 Bull, 1966, cited Andrew Linklater, ‘Rationalism’, in Scott Burchill, et al.,(eds) Theories of International Relations, 2nd edition, Palgrave, Basingstoke, 2001, p.110. 106 Wheeler and Bellamy, op.cit., p. 472. 107 Freeman, op.cit.,p.131. 108 Firth, op.cit., p.245.
39 This is further strengthened by a distinction between ‘inside’ and ‘outside’. According to Giddens, “sovereignty presumes a system of rule that is universal and obligatory in relation to the citizenry of a specified territory but from which all those who are not citizens are excluded.”109 A classical realism associated with raison d’état (reason of state) indicates dual moral standards that distinguish between the ‘in-group’ and the ‘out-group’, and this raison d’état claims that the state has to show moral claim domestically.110 The states responsibility is to guarantee to their citizens an entitlement with an extensive array of rights of civil, political, economic, social and cultural goods.111 Indeed, states concentrate to protect their own citizen’s HR. Government’s emphasis on the morality of their states and assert that sovereignty has an obligation to protect the human rights of their citizens rather than non-citizens.
Human Rights and globalisation
Human Rights and globalisation have been the subjects of extensive study in recent years. Brysk states that globalisation and HR have a same root which came from the ideas of liberalism for enlightenment.112 Globalisation is difficult term to define. Globalisation has changed the world with complex and multi-dimensional processes. Globalisation is the international phenomenon that is composed of the increasing mobility, interaction and integration of many facets of human activity - economic, people mobilisation, media and communication, ideology and technological improvement. A large number of studies regarding globalisation assert that economic, political, social, cultural and environmental relationships within and beyond the states have become both more globalised and more fragmented.113 According to McGrew, globalisation is:
109 Vervoorm, op.cit., p.52. 110 Dunne and Schimidt, op.cit., p143. 111 Donnelly, op.cit., p.59. 112 Alison Brysk, ‘Globalisation and Human Rights : It’s a Small World after all’, Phi Kappa Phi Forum, 83(4), 2003, p.21. 113 Jackie Hogan, ‘Constructing the global in two rural communities in Australia and Japan’, Journal of Sociology, 40(1), p.23.
40
The forging of a multiplicity of linkages and interconnections between the states and societies that make up the modern world system. The processes by which events, decisions, and activities in one part of the world can come to have significant consequences for individuals and communities in quite distant parts of the globe.114
Globalisation is not new, but recent globalisation has been called ‘New World Order.’115 Globalisation is often portrayed as an effect of the end of the Cold War because this led to its further geographic spread. 116 Moreover, globalisation deeply involves a new form of economy. Dicken asserts that globalisation of economic activity is qualitatively different from the past trend of internationalisation, which is a much more recent phenomenon. He argues that it is a more advanced and complex form of internationalisation, which implies a degree of functional integration between internationally dispersed economic activities.117 A number of explanations regarding globalisation focus on the new world economy since the 1970s when the production of goods and service became widely and intensively integrated in global markets, and non-states agencies such as MNCs and international financial institutions brought unprecedented pre-eminence as global agencies.118 HR have become an integral part of the process of globalisation. Globalisation has spread HR ideology world wide with social change. Globalisation has had a profound impact on states’ attitude to HR because it has become an ideology beyond the traditional sovereignty of the state, emphasising global citizenship. Global citizenship means that all human beings are world citizens, and it is expected that the validity of liberalism and
114 Anthony McGrew, ‘The Third World in the New Global Order’, in T. Allen and A. Thomas (eds), Poverty and development in the 1990s, Oxford University Press, Oxford, 1992, p.262. 115 D. Broad, ‘Globalisation, Neo-liberalism, and the transformation of the Australian state’, in Australian journal of Political Science, 32(3), 1997, pp.345-347. 116 Ian Clark, ‘Globalisation and the post-cold war order’ in J. Baylis and S. Smith (eds), The Globalisation of World Politics, 2nd edition, Oxford University Press, Oxford, 2001, p.643. 117 Peter Dicken, Global Shift, 2nd edition, Paul Chapman Published Ltd., London, 1992, p.1. 118 S. S. de Boaventura, ‘Toward a Multicultural Conception of Human Rights’, Berta Hernández-Truyol (eds), Moral Imperialism. A Critical Anthology, New York University Press, New York and London, 2002, p.41.
41 democracy can be implemented for all people in the world without distinguishing state sovereignty.119 This idea is regarded as being useful for maintaining peace. In this respect, states are required to relinquish their state power in order to institutionalise sharing political and moral norms over the world.120 Moreover, global citizenship, sometimes referred to as cosmopolitan citizenship, is expected to work out some chaotic international political problems.121 Supporters of globalisation such as liberalists, therefore, advocate political freedom, and allege that democracy derives from the concept of universal or cosmopolitan citizenship. This view implies that state power has been marginalised in international politics consequently globalisation makes nations accountable to the rest of the world for the treatment of global citizens. In this regard, the issue of HR and democratisation has become an important part of the discussion of humanitarian intervention with a view that it represented the triumph of liberal democracy. Liberal supporters and many world citizens started to advocate humanitarian aid for nations where there was government abuse and their approach has remained dominant in recent years. The former UN Secretary General, Kofi Annan put forward a very radical view regarding humanitarian intervention, arguing that states’ boundaries must be breached to protect individuals who are abused by their governments. 122 According to Falk, the standard justification of humanitarian intervention is: The allegation that gross violations of human rights are occurring on such a massive scale as to override the foundational principle of Westphalian world order that territorial sovereignty is inviolate.123
While restrictionists deny humanitarian intervention, counter- restrictionists argue that society or states have rights for humanitarian intervention based on the UN charter statements of fundamental HR protection
119 Bauböck, op.cit., p.247. 120 Linklater, 1998 cited Richard Devetak, ‘Critical Theory’ in Scott Burchill, et.al (eds), op.cit., p.172. 121 Richard Falk, ‘The Making of Global Citizenship’, in Bart van Steenbergen (eds), The Condition of Citizenship, Sage, London, 1994, p.132. 122 Kofi Annan, ‘Two concepts of Sovereignty’, The Economist, 18 September 1999, the United Nations Secretary-General, http://www.un.org/News/ossg/sg/stories/articleFull.asp?TID=33&Type=Article [Accessed 16 August 2005]. 123 Richard Falk, Human Rights Horizons, Routledge, New York, 2000, p.3.
42 and customary international law.124 Under the counter-restrictionists’ approach, solidarism theory argues that international society stands on agreement on universal standards of justice and morality; therefore, humanitarian intervention would be legitimated. 125 Support of humanitarian intervention deserves consideration on the grounds that HR are the foundation of freedom, justice and peace under the Article 2 of the UDHR. With increasing global HR awareness, a general acceptance of the UDHR is illustrated by the large number of global and regional treaties between governments and the emergence of non-governmental organizations (NGOs) of HR such as Amnesty International and Human Rights Watches and Inter government bodies such as the IMF. In particular, human rights institutions behave as watchdogs of HR records of states actions and have played an important role in the HR arena world wide, making it difficult to ignore HR violations. They have a vision that every person enjoys the UDHR and are concerned solely with the impartial protection of HR by investigating HR in all regions.126 A number of HR improvements have been initiated by them such as democratisation projects; interstate dialogues, achieving gender equality, demolishing child labour, improved workers conditions and many more of practical and social importance. Additionally, communication via Internet or media has permitted HR advocates to call immediate attention to and respond to gross HR violations in the world. Globalisation enables people to access economic benefits and political and civil rights.127 International notions and institutions for the promotion and protection of HR are widely developed by globalisation. Yet, HR violations and a damage of fundamental human dignity still continue. While globalisation has created global HR awareness, new global HR problems have also been created. These need solutions at an international level, and in addition can generate serious dilemmas between HR and the role of states.
124 Arend and Beck 1993 cited Wheeler and Bellamy, op.cit., p.475. 125 Dunne, Hill and Hanson, op.cit., p.98; Wheeler and Bellamy, op.cit., p.477. 126 Amnesty International, http://web.amnesty.org [Accessed 17 April 2006]; Human Rights NGO have strong impact. Amnesty International received the Nobel Prize was awarded in 1977 (cited Freeman, op.cit., p.46). 127 Howard-Hassmann, op.cit., p.8.
43
Impacts of globalisation on States’ Human Rights
The nature and impact of globalisation is an important subject in the role of the state, by changing the role of states in many ways. As Ohmae argues that it could see, ‘the end of the nation state,’128 one critic of globalisation is that globalisation erode state sovereignty. While globalisation has brought increasing global HR awareness, it has brought a new problem to states. In particular, the end of the Cold War created the conflict spectrum that is called ‘grey area phenomena’ (GAP). GAP is regarded as a threat to the stability of state.129 States have to manage many confronting global challenges such as international crime syndicates, drug trafficking organization and terrorist group, and global issues such as AIDs, migration and refugees each of which require solutions at an international level. It does not mean that state power has disappeared but political challenge is required. The notion of Hardt and Negri seems accurate: “the primary functions of nation states have been to maintain their importance but been transformed through the contemporary processes of globalisation.” 130 Pieterse argues ‘a paradigm shift from the era of the nation state and international politics to the politics of planetary scope.”131 States are required to fit in with globalisation for their existence and exercise sovereignty in the basis of international relations on the premise that globalisation is inevitable. Globalisation has influenced the role of states in a negative way for HR implementation towards outside. One of the aspects of globalisation is a mobility of people and money. Under a global wave, state sovereignty has been increasingly pressured by its existing power. Governments have to face a new and more complex challenges to protect their states and their citizens from growing international tensions, instability and marginalisation caused by
128 Ohmae, 1995 cited Pieterse, op.cit., 2004, p.10. 129 Peter Chalk, ‘Pandemic Threats to Security’, in M. Hanson and W.Tow (eds), op.cit., p.175. 130 Michael Hardt and Antonio Negri, ‘Globalisation and Democracy’ in Stanley Arnowitz and Heather Gauntney (eds), Implicating Empire: Globalisation and Resistance in the 21st Century World Order, A Member of the Preseus Books Group, New York, 2003, p. 110. 131 Pieterse, Globalisation & Culture: Global Mélange, op.cit., p.7.
44 globalisation. In particular, after September 11, 2001, states have placed greater stress on the need to protect their sovereignty – and security. Global waves have led states to proclaim more rules and ensure they are more strictly enforced to distinguish between ‘inside’ and ‘outside’ the citizenry, and try to exclude outside non-citizens in order to protect inside citizens.132 In this regard, the issue of migrants and refugees has been raised. The recent USA anti-immigrant operations that have denied many immigrants from Mexico getting jobs is seen as resting upon the basic characteristics of excluding others while sometimes even causing death.133 This issue indicates a host of moral issues such as the ethnic balance inside countries, the real meanings of citizenship and sovereignty, the distribution of income, labour supply, xenophobia and the impact of culture.134 However, this has also led to a disregard for promoting HR towards outsiders and indicates a rejection of the UDHR, especially article 22. 135 These cases have demonstrated the conflict between realism and idealism, namely between a tension existing of territorial sovereignty and the universality of HR. It may be concluded that the political process to protect HR for outside non-citizen, have often failed to reflect HR, and the ethical responsibility of states is questionable in the light of the concept of the UDHR. What is essential is that sovereignty always associates with the morality of states in the international arena. An approach of HR is based on morality and law, and it could be argued that the state’s foreign policy towards HR must be placed to secure for individuals the necessary conditions for leading a minimally good life not only for its citizens but also non-citizens all over the world. Vervoom argues “human rights articulate the minimum human needs of a society,
132 Giddens, op.cit., p.28. 133 Amnesty International, Revolutionary Worker #972, ‘The Brutal Border Patrol’, Amnesty International Report, September 6, 1998, http://revcom.us/a/v20/970-79/972/airbord.html [Accessed 7 June 2006]. 134 Charles W. Kegley, ‘Globalisation and the disappearance of national border’, in Charles W. Kegley and Eugene R. Wittkopf, World Politics: Trend and Transformation, 8th edition, Macmillan, London, 2002, p.303. 135 The UDHR Article 22 states that ‘Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
45 spelling out in particular the role of the state in securing those needs”.136 A lack of this morality is a serious matter and troubling to the society of people as a whole. As discussed, then, sovereignty is the ultimate state authorisation of power. Therefore, a changing global world has created unprecedented serious dilemmas between the promotion of HR values and sovereignty. This has result in leaving a big gap between the domestic achievements of HR implementation and the failure to act for HR implementation internationally. A further difficulty regarding HR implementation is the economic sphere, namely, economic globalisation. Economic globalisation has changed the role of states extremely in terms of the need to accommodate trade requirements directly into their foreign policy, and raised questions about whether economic globalisation has offered a positive role for HR in states’ foreign policy. With the emergence of economic globalisation, a set of neo-liberal agencies such as the IFIs, the WTO and the growth of MNCs appeared. They appear to force states to promote neo-liberal ideology by arguing the following: Neo-liberalism enables the sustenance of human progress, because free market with deregulation allows for the most efficient and a socially optimal allocation of resources,
Economic globalisation is beneficial to everyone and privatisation enables the removal of the inefficiencies of the public sector,
Integration of the markets expands to promote the provision of civil rights and public good. 137
Thus, states have been increasingly influenced by the decisions of institutions through so-called neo-liberalism, by advocating ‘the recovery of liberalism’. Liberalism has long been seen as an ideology for political freedom, democracy, constitutionally guaranteed rights, privilege, liberty of the individual and equality under the law.138 Neo-liberalism however, emphasises the centrality of economic aspects, such as total freedom of movement for
136 Vervoorn, op.cit, p.62. 137 Robbins, 1999 cited Anup Shah, ‘Free Trade and Globalisation’, http://www.globalissues.org/TradeRelated/FreeTrade/Criticisms.asp [Accessed 6 May 2004] ; S. Horowitz and A. Schnabel, ‘Human rights and societies in transition: International context and sources of variation’, in S.Horowitz and A.Schnabel (eds), Human rights and societies in transition:Causes, consequence, responses, United Nations University Press, Tokyo, 2004, p.13. 138 Burchill, ‘Liberalism’, op.cit., p.29.
46 capital, goods and services, where everything is a tradeable commodity, and where market forces must be left to rule, free from interference from government or communities.139 When a New International Economic Order, namely economic globalisation emerged in 1974, economic globalisation was given credence because economic globalisation was regarded as promoting freedom through its commitment to democracy and HR in light of the ideology that is consistent with the ideology of HR. The wave of neo-liberal economic globalisation was accelerated by the Uruguay Round of the General Agreement on Tariff and Trade (GATT) and the creation of the WTO in 1995, and has been supported by neo-liberal, structural adjustment policy of the Bretton Woods agreement as well.140 Under neo-liberal ideology, states have to see sustaining economic development efforts into international economic integration. The WTO strengthened its control over HR issues such as labour rights practice, and forced global trade associated with neo-liberal ideology on to states. 141 Foreign policy in advanced countries has thus been dominated by economic globalisation, where economic priority centres on advantaging trade. HR concerns need not be wholly set aside. In 1994, the Clinton administration started to de-link HR and trade in setting its foreign policy with the most favoured-nation states if the states failed of violating states. 142 This approach is called minimalist approach, and is based on the view that trade with such states, apart from advancing one’s own national interests, would have a great effect on the transformation of these developing countries, because, it was expected that constructive interaction with business corporations would impact on progressive change.143 In this regard, the Tiananmen Square massacre of 1989 offer insights. In the case of Tiananmen, the military power of the Chinese Communist Party killed
139 G. M., Chunakara, Globalisation and Its Impact on Human Rights, published by Christian Conference of Asia, Hong Kong, 2000, http://www.religion-online.org/cgi- bin/relsearchd.dll/showchapter?_id=1398 [Accessed 26 March 2004]. 140 J. Blau and A. Moncada, Human Rights: Beyond the Liberal Vision, Rowman & Littlefield Publishers, Inc., Lanham, 2005, xv. 141 Susan Koshy, ‘From Cold War to Trade War: Neo-colonialism and Human Rights’, Social Text, No.58, Spring, 1999, p.15. 142 Firth, op.cit., p.262. 143 Hanson, op.cit., p.79.
47 approximately 1000 students who claimed the importance of democracy. 144 The western media explored the situation and criticised the HR violations by the Chinese government. The US was the most frequent user country to apply international economic sanctions programs for HR improvement in the world. While the US saw that the Chinese government’s attitude toward HR implementation was not supported international HR ideology, the US Congress not only did not criticise China but also ignored China’s HR, because China was a big business partner for the US.145 Donnelly examines economic growth in Brazil in the 1970s and South Korea between 1960s and 1980s. He emphasises the importance of economic development and argues that trade-off ideology is eventually effective, because satisfying the basic needs of economic and social aspects reduces inequality and results in protecting civil and political rights.146 However, it is important to note that the ideology of the trade-off as described by Donnelly and the US’s trade-off are relatively different. Donnelly takes the perspective of the national interests of developing countries whereas the US’s ideology of trade-off stresses national interests for US only. Richardson reports that one-third of China’s annual export was worth more than $30 billion for the US.147 However, it has caused problematic issues in representing an economic globalisation perspective. Economic structures and interests are the main factors that influence HR practices as being ‘Bait and Switch tactic’. 148 China’s social, economic and political rights have progressed since the Tiananmen Square event. However, China’s implementation of HR has been criticised as being deliberately agnostic because of China’s adhering policy of non-interference in internal affairs.149
144 Amnesty International, 1989 cited GreenLeft, ‘A voice of dissent’, GreenLeft weekly, http://www.gllenleft.org.au/back/1996/236/236p21.htm [Accessed 13 May 2006]. 145 Firth, op.cit., p.262. 146 Freeman, op.cit, p.80. 147 Michael Richardson, ‘Asia Fears a Stubborn China as U.S. Step Up Trade Pressure’, International Herald Tribune, March 10, 1994 http://www.iht.com/articles/1994/03/10/ [Accessed 15 May 2006]. 148 Julie A, Mertus, ‘Human rights and U.S. foreign policy’, Foreign Policy in Focus, March 4, 2004, p.1. 149 Kenneth Roth,‘China’s silence boosts tyrants’, International Herald Tribune, April, 19, 2006, http://www.iht.com/articles/2006/04/19/opinion/edroth.php [Accessed 5 May 2006].
48 The USA has faced a difficulty in arguing HR issues in China because of economic relationships. Inconsistencies and vacillations on trade and HR under foreign policy are symptomatic. Foreign aid is a powerful tool for framing policy issues of HR. Yet, foreign aid itself is often highly politicised, because it is closely connected to economic ties and trading agreements that are called ‘procurement-tied’, meaning that the recipient countries must purchase goods and services for the donor country’s companies. 150 Development aid is a commodity of HR to enhance national interests of donor countries. Aid programs of donor countries do not reflect HR sufficiently. The fact that aid programs do not go to the extremely poor countries is a good example, because donor countries cannot expect any economic benefits. For example, according to the Organization for Economic Cooperation and Development (OECD) report in 2002, only 17 per cent of gross bilateral Official Development Assistance (ODA) went to the poorest countries such as Africa.151 Trade rules under the minimalist approach are formulated and negotiated directly and indirectly on HR. States, especially rich western countries, have used these concepts for the promotion of their own economic interests. This trade rule has also influenced aid programs. Aid programs present multiple motivations such as humanitarian concerns, foreign policies and commercial interests. It means that aid programs re-present a dominating political and economic consideration of the donor, rather than genuine humanitarian aid. It is important to note that foreign aid brings some destructive results in recipient countries. Moon argues, that, “foreign aid becomes only one of many transactions which serve to create an asymmetrical integration of economic, social, political and cultural systems, and, consequently, produce a distortion in the foreign policy behaviour of the weaker dependent state”.152 Thus, economic globalisation has made a new conditionality of aid to recipient countries, deciding not to the purchase of good and services. 153 This asymmetrical
150 Apodaca, op.cit., p.894. 151 Peter Singer and Tom Gregg, How Ethical Is Australia?: An Examination of Australia’s Record as a Global citizen, Black Inc., Melbourne, 2004. p.22. 152 Moon, op.cit., p.321. 153 Firth, op.cit., p.280.
49 integration is the same with the uneven process of globalisation, because recipient countries are managed and governed. It is clear that trade does not reflect HR. Hanson argues “the minimalist approach of human rights is bound to be incomplete, inconsistent and at worst, will bring such a policy into disrepute”.154 Economic globalisation associated with neo-liberal ideology has been questioned with in regards to HR issues because globalisation is often referred to as uneven and is often interpreted and criticised as western imperialism. Critics point out that the ideology of neo-liberalism is destructive. Economic globalisation has polarised the world so that there are few winners and many losers, and the chasm between the rich and the poor has grown wider. This polarisation has appeared not only between the West (North) and the South in the international world, but also within states. Globalisation intensifies the violation of HR and human dignity of people all over the world by increasing the poverty, insecurity, and the fragmentation of society. Krasner argues that HR are motivated by the interests, pressures and capabilities of great power.155 Moreover, as Richard Falk notes, globalisation can be distinguished between ‘globalisation from above’ (GA) and ‘globalisation from below’ (GB). He asserts that GA represents the western dominant power with global institutions based in Geneva and Washington, pressing democratisation on non-democratic countries. Boaventura de Sousa Santos, a Portuguese scholar emphasises hegemonic GA and counter- hegemonic GB. 156 It requires them to adopt the western liberal democratic system of governance. GA also ties closely with neo-liberal ideology.157 The power of western liberal hegemony with neo-liberal forces has been dominant in the modern world so that rich western countries may control their economic prosperity.
154 Hanson, op.cit., p.80. 155 Krasner, 1993 cited Thomas Risse and Kathryn Sikkink, ‘The socialisation of international human rights norms into domestic practices: introduction’, in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change, Cambridge University Press, Cambridge, 1999, p.35. 156 Boaventura, op.cit., p.43. 157 Chunakara, op.cit.,
50 Falk locates HR in GB and includes participation at local level. 158 Moreover, given the criticisms of universality, the criticism presents a formidable challenge to the concept of globalisation from GA. Neo-liberalism has demonstrated negative views of HR. Some argue that HR support Locke’s concept of natural rights seeking to justify ‘bourgeois political revolution’. 159 Giddens asserts that these bourgeois rights were proposed by their advocates as universal, but in fact serve to legitimate the dominance of the capitalist class. 160 Bourgeois class supports capitalism, arguing that capitalism in general can be a powerful driver for development, in nurturing technological innovation, in promoting initiative, and in creating wealth. Yet, contemporary economic growth is of an entirely different type to what preceded it and it is very difficult to control and check the force that drives markets and investors.161 Neo-liberalism as the basis of economic globalisation promotes a strong competitive capitalism seeking great economic benefits by exploitation. Irrespective of Marx refusing HR per se, his ideas lead to a much more critical stance in regard to today’s dynamics of capitalism’s role of exploitation by neo-liberal ideology where many criticise it as a violation against humanity. Marx predicted the nexus of globalisation and rights with critiques of the western hegemonic power, arguing that capitalism and imperialism are inherent, and that imperialism’s aggressive competition is the product of capitalists’ need for profit and enable overseas outlets for their surplus capital. 162 Moreover Marx argued that the process of capitalist expansion must always be uneven and unequal. Marx recognises the constraints upon human action and aspiration, but these constraints are seen as principally the creations of other sets of human beings who monopolise power and wealth, and want to keep it what way, rather than as due to defects in human nature.163
158 McCorquodale with Fairbrother, op.cit., p.739. 159 Freeman, op.cit, p.47. 160 Giddens, op.cit., p.198. 161 Blau and Moncada, op.cit., p. 24. 162 Columbia Encyclopedia, (6th editon),‘Marxism’, http://www.bartleby.com/65/ma/Marxism.thml [Accessed 28 April 2006] ; Siegel, op.cit., p.54. 163 Columbia Encyclopedia, op.cit.,; J.B. Foster, ‘The rediscovery of imperialism’, in Monthly Review, Vol.54, No.6, 2002, p.5; Marx’s idea also links to the recent critical theory and feminist theory that shares Marx’s ideology. Marx’s ideology indeed links to critics of a contemporary international political economy that presents about the interplay of economics and politics in world affairs.
51 Neo-liberal ideology is a threat to HR. Today’s neo-liberal approach is ‘exploitation’ that has consequently given an adverse impact on HR issues. An ideology of Marx outlines exploitation. Significantly, fundamental Marxist materialism takes a view that ‘exploitation’ in the light of that profit of the bourgeoisies as the extraction of surplus value from the exploited proletariat, which do not reflect labour power properly. 164 Hobden and Wyn Jones also point out that from such assumptions “the relative prosperity of the few is dependent on the destitution of the many”. 165 Exploitation is an act or behaviour of utilising in an unfair way for gaining self-interests. Exploitation always associates moral or ethical corruption. Exploitation undermines the claim of social and economic rights under second generation of human rights (articulated in Article 25(1) under the UDHR). 166 This is because exploitation represents the destructive, and this destructive exploitation deprives the most fundamental rights, rights to life ensuring minimum living standards and rights for social and economic development. Thus, neo-liberal ideology does not guarantee minimum living standards as a basic right under the UN moral claims. It could be argued that neo-liberalism is not at all concerned with the study of HR. 167 However, development of economic and social rights deserves to argue as the needs of fundamental HR. While civil and political rights are regarded as the first priority, these rights would not be effective without also satisfying social and economic rights. Precisely, for these reasons, ‘exploitation’ is best seen as resting upon fundamental characteristics that can be understood by the roles of one of the neo-liberal agents such as MNCs or transnational corporations (TNCs) in West.
164 R. Jackson and G. Sorensen, Introduction to International Relations, 2nd edition, Oxford University Press, Oxford, 2003, p.186; The surplus value is created a difference, which is the value of the commodities purchasable by the worker’s wages is less than the value of the commodities he/she produces. If the difference is wider, this surplus value does not justify labour power properly. 165 Stephen Hobden and Richard Wyn Jones, ‘Marxist Theories of International Relations’, in J. Baylis and S. Smith (eds), The Globalisation of World Politics, 2nd edition, Oxford University Press, Oxford, 2001, p.203. 166 Article 25(1): Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 167 Freeman, op.cit., p.98.
52 Human rights activists and many have addressed HR violations by those neo- liberal agents. There have been numerous examples of HR violations via ‘exploitation’ which is yet claimed to be within neo-liberal policy. Accounts of child labour and sweatshop working conditions have been widely raised to become major HR issues. Their role is expected to gain huge returns by investing in Foreign Direct Investment (FDI) and using cheap labour in developing countries. Their primary purpose is to serve the interests of their companies in the industrialised west, including generating profits for banks and other transitional corporations in their states.168 MNCs have legal obligations to respect HR under the UDHR or the International Covenants that have traditionally bound only states. Yet, international trade law guarantees a number of strong rights to MNC.169 In the 1980s, widespread commitment to neo-liberal ideology encouraged more trade and investment through bilateral agreements, debt-management negotiations. The IFIs offered the programs of economic development of stabilisation with conditional that was called Structural Adjust Programs (SAP) towards developing countries that suffered extreme poverty. Yet, the programs were denounced as being totally vulnerable and destructive because the IFIs required those countries to pursue embrace a neo-liberal agenda that emphasises global trade. A kind of colonial approach was appearance clearly. The conditions of developing the countries were worse because of increasing debt that was created in order to meet the IMF/World Bank’s requirements.170 The SAPs created poverty and destroyed any real chance for developing countries. Moreover, under the SAP programs, the IFIs and MNCs expanded a specialised part of projects such as the building of huge dams, roads, airport runways, forestry, agriculture and the creation of large-scale commercial companies. These projects often caused disastrous problems such as environmental destruction by exploitation of natural resources over the world.171 In this regards, the issue of Amazonian rubber tappers in Brazil of
168 McCorquodale with Fairbrother, op.cit., p.744. 169 Kinley and Joseph, op.cit., pp.8-9. 170 McGrew, op.cit., p.210. 171 McCorquodale, op.cit., pp.743-744; Jeremy Brecher and Tim Costello (eds), Global Village or Global Pillage?: Economic Reconstruction from the Bottom Up, South End Press, Boston, 1994, p.90;
53 the mid 1970s, logging problem in Indonesia between 1994 and 1995 and toxic mining project in the Global South are good examples.172 In Uganda or Mozambique, the two African heavy developing countries, the debt relief did not only sufficiently reduce the debt service burden performed, but also debts increased so badly in debtor countries.173 According to Colgan, total external debt as share of GNP for the countries, which had accepted SAP, increased from 71.1 per cent to 87.8 per cent between 1985 and 1995.174 In particular, Sub-Saharan Africa debt increased as a share of GDP from 58 per cent in 1988 to 70 per cent in 1996.175 Thus, the roles of a set of modern neo-liberal agents can be portrayed as HR violations. Foreign policy, especially in western countries, has been criticised in that their approach has undermined the practical implementation of HR. There is an increasing impression that HR are given no more than lip service, while the rhetoric contains a lot of hypocrisy.176 It is also often used as government propaganda and sometimes used to promote their national interests. HR implementation by the West has been identified as revealing ‘inconsistency’ or ‘double standards’, due to the gap in the Western management of HR. This inconsistency is the same criticism of contemporary neo-liberal economic approach such as IFIs, WTO and MNCs, as well as rich states in West. States that are involved with economic globalisation, have created unprecedented serious dilemmas between national interests and promoting HR values in their foreign policy, because the trade rules that have been formulated and negotiated directly and indirectly on HR.
172 J. Brecher and T. Costello (eds), Global Village or Global Pillage?: Economic Reconstruction from the Bottom Up, South End press, Boston, 1994, p.91 and p.108; Jubilee USA Network, ‘Debt and the environment’, http://www.jubleeus,org [Accessed 25 June 2006]. 173 George Ann Potter, Deeper than Dept: Economic globalisation and the poor, The Latin America Bureau, London, 1999, p.27. 174 A. L. Colgan, ‘How IMF-World Bank make Africa Sick?’, 2002, http://www.greanleft.org.au/back/2002/4971/497p24.html [Accessed 5 November 2003]. 175 R. Naiman and N. Watkins, ‘A Survey of the Impacts of IMF Structural Adjustment in Africa: Growth, Social Spending and Debt Relief’, 1999, http://www.cepr/net/IMFinAfrica.htm [Accessed 3 June 2004] ; The Bretton Woods institutions have been criticised enormously because of inhumane programs, and they have improved the development programs, fundamentally neo-liberal view has not changed at all. 176 Freeman, op.cit., p.51.
54 Conclusion
This chapter examined the impact of globalisation on states’ foreign policy with regards HR. Firstly, this chapter outlined an overview of the importance of international human rights, and sought to clarify what is meant by HR taking the UDHR as foundation definition. The central points of the UDHR are equality and non-discrimination principles. HR ideology is founded on the importance of theoretically universal and practically globalised principles. However, the UDHR addresses the many problems in both theory and in practice. In theory, the prominent criticism against universality is the argument of cultural relativism. Those propounding cultural relativism denounce the UDHR ideology, expressing that the UDHR forces dominant western cultural values and so does not reflect non-western traditional cultural values. They also argue against the western hegemonic power for the implementation of HR with terms of inconsistency or double standards. Critics of universality denounce HR claiming that they are initially linked to specific, bourgeoisie class interests of the West. However, this chapter has argued that the importance of the purpose of the universality as is international standard for maintaining international peace. An ideology of international HR encourages each state to support and contribute to HR issues through their foreign policy. Foreign policy contains wider issues such as recognition and support of HR and international constraints on the behaviour of states. Internally, states try to support the implementation of HR and they can do this by uniting with international human rights institutions and ratifying important treaties so they become an important part of international law. The states’ ratification of international human rights treaties indicates the extent to which states implement international HR. However, HR concerns are not always reflected in states’ foreign policy. This chapter has examined states’ failure to implement foreign policy which reflects HR in their foreign policy in terms of state sovereignty and globalisation. State sovereignty is sometimes a strong barrier to implementing international HR in its foreign policy because of emphasis on
55 only the highest legislative authority. Sovereignty is also emphasised for the protection only of a nation’s citizens. Moreover, globalisation has materially changed the role of states. The final part of this chapter outlined the definition of globalisation and its role, the role and impact of neo-liberal ideology that promote global trade and the role of neo-liberal policy agents. Growing international tensions, instability and marginalisation caused by globalisation, mean that governments have to face a new and more complex challenge to protect their states. Such a global wave has required states to have rules more strictly to distinguish inside from outside and try to exclude outside non-citizens. In particular, economic globalisation for promotion of global trade has impacted on foreign policy. Sates’ foreign policy with regards to HR has been criticised as being inconsistent in terms of pursuing a certain purpose of states for their national interests. This is because HR issues have become to connect with economic interests such as aid programs. These aid programmes are referred to as investment to donor countries in order to get a big return. States’ foreign policy associated with neo-liberal ideology has reduced the importance to support international HR claims. The central point of this adverse direction is that foreign policy generated by economic globalisation has undermined the basic morality and law, articulating the minimum human needs for society under the concept of the UDHR. Overall, HR in foreign policy is not regarded as a high priority in terms of the influence by globalisation. This tendency is seen in Australia’s foreign policy as well. The next chapter explores the human rights implications of the transformation of globalisation in Australia as a western capitalist democratic country.
56 Chapter 2
Australia’s approach to Human Rights with Globalisation
Australia long ago adopted and recognised the universality of international human rights law. It implemented human rights treaties from the Declaration of Human Rights (UDHR) which was established in 1948. Australia is one of 191 states that are members of the United Nations, which is the international organisation of states. Australia has also contributed to international development organizations such as the United Nations Children’s Fund (UNICEF), the United Nations Develop Programme (UNDP), the World Bank and the Asian Development Bank as a part of multilateral approach to human rights.1 After the Second World War, and in particular, after the 1970s, Australia became increasingly integrated economically and politically into the international order, in other words, globalisation.2 Australia’s approach to HR was affected in many ways. Nevertheless, the Australian Labor Party in the Hawke/Keating years (1983-1996) emphasised the universality and indivisibility of basic HR embodied in the UDHR model. Yet, Australia’s HR approaches as a global citizen were severely questioned. Successive Australian governments’ HR approaches were criticised as inconsistent since priority was ascribed to economic concerns. It has become a powerful cliché that Australia is as if ‘Janus-faced’, since it has appeared to be vigilant abroad, but reluctant and complacent with regard HR at home.3 There have thus been contradictions in its HR approach under globalisation. These criticisms raised questions about the seriousness of Australia’s commitment to the principles of international HR, and some of the tensions in the relationship between globalisation and HR in Australian foreign policy.
1 DFAT,1998a, cited Hanson, op.cit., p. 82. 2 B. Galligan, W, Roberts and G. Trifiletti, Australians and Globalisation, Cambridge University Press, Cambridge, 2001, p.145. 3 Charlesworth 1994 cited Galligan, Roberts and Trifiletti, op.cit., p.149.
58 The primary purpose of this chapter is to address the connection between international HR and globalisation in order to analyse the trends of Australia’s foreign policy with regard HR. Two specific questions are thus raised : how has globalisation influenced Australia’s HR approaches, and as a corollary, what has occurred in the economic sphere. Specifically this latter question focuses on the extent to which economic globalisation has affected foreign policy with regards to HR. This chapter explores the nexus of HR and globalisation, examining Australia’s HR perceptions, implementations and the extent to which Australia has united with international HR institutions. This chapter is organised into two sections. The first section examines how successive Australian governments effected their foreign policy with regard to international HR with globalisation over nearly three decades to 1996. This part can be dated from the Whitlam Government in the early 1970s when globalisation gathered pace, then continues through the years of the Fraser Liberal Government and then the years under the Labor Party governments of Bob Hawke and Paul Keating when economic globalisation became central. This section also examines increasing concerns about the extent to which those foreign policy directions became inconsistent with universal ideals of HR. The second part of this chapter explores and evaluates the current Australian Liberal Coalition Government’s official attitude to HR since 1996. Australia’s international reputation regarding HR has deteriorated markedly in the last few years. It will explore the extent to which the Howard Government has implemented its foreign policy taking heed of the need for HR, internationally and domestically. In so doing, we will consider the views that the HR approaches of the Howard Government have been criticised, have also changed and damaged the Labor Party’s contributions to international HR issues, and facilitated further negative effects on HR. It will also examine the extent to which the Howard Government’s HR approaches to globalisation have been different from those of the previous regimes. This section also evaluates the Howard Government’s diminishing role in giving formal support to HR, evident in selective approaches to the UN treaties, refugee policy, economic emphasis in areas such as bilateral dialogue and aid programs, and Australia’s humanitarian intervention towards East Timor.
59 1) Human Rights in successive Australian foreign policy with globalisation before 1996
Australia’s approaches to international law: mediation and impacts
Since universal HR were promulgated in 1948, Australia has supported international human rights. Australia served on the UN Commission on Human Rights, in 1947-56, 1978-83, 1985-87, and 1991-96 respectively, and served on the Commission on the Status of Women in 1955-57, 1961-63, 1967-69, 1983- 90, and 1993-96.4 Under the Curtin and Chifley Governments, Dr. Herbert Evatt, Attorney General and Minister for External Affairs (1941-1949), supported the UN as the central concept of his philosophy of his foreign policy, arguing ‘international peace can be maintained only through international justice. Evatt stressed ‘international justice and equity’ in Australia’s foreign policy, and focused on the anti-colonialism and protection of HR.5 Evatt’s policy is regarded as the Labor foundation for HR. The 1970s were more remarkable in that Australia took more purposive and positive actions regarding implementation of international HR, taking account with global awareness. This began with the acceptance of a mandate to promote HR and democratic norms as articulated in the 1971 Singapore Declaration of Commonwealth Principles.6 When Gough Whitlam came to power in 1972, Australian began to pursue HR in its foreign policy enthusiastically. Whitlam fundamentally followed Evatt’s policy that claimed commitment international justice and equity. 7 The table below shows Australian Prime Ministers and Ministers for Foreign Affairs from 1972 to 1996.
4 DFAT, Human Rights Manual, op.cit., p.24. 5 Evans 1941 cited Lorraine Elliott, ‘Social Justice in Labour’s Foreign Policy’, in David Lee and Christopher Waters (eds), Evatt to Evans:The Labor Tradition in Australian Foreign Policy, Allen & Unwin, St. Leonards, NSW, 1997, p.186. 6 Hanson, op.cit., p.83. 7 Whitlam dominated foreign policy because he served concurrently as foreign minister during the first year in 1972 (Hugh Smith, ‘Internal Politics and Foreign Policy’, F.A. Mediansky (eds), Australia in a Changing World, Maxwell Macmillan Publishing Australia, Botany, NSW, 1992, p.24.
60 Table 2.1: Australian Prime Ministers and Ministers for Foreign Affairs and Trade, 1972-96 8 Prime Ministers Ministers for Foreign Affairs Political (since 1987, Ministers for Party Foreign Affairs and Trade)
1972 – 1975 Gough Whitlam Gough Whitlam (1972-73) Labor Don Willesee (1973-75) 1975 - 1983 Malcolm Fraser Andrew Peacock (1975-80) Liberal Tony Street (1980-83) 1983 – 1991 Bob Hawke William Hayden (1983-87) Labor William Hayden (1987-88) 1991 - 1996 Paul Keating Gareth Evans (1988-96) Labor
The Whitlam Labor Government (1972-1975) demonstrated the nature of Australia’s engagement with international HR. Whitlam argued that
‘democratic socialism is international in outlook by its very nature’.9 In his ‘new approach’, he was keen to support international citizenship.10 This policy had two dimensions: internationalism, which relates to support for the UN human rights treaties and international law, and international equality which derived from the Labor party’s ideals based on social democracy, and includes international issues such as equality, development and aid.11 Indeed, the Whitlam Government saw greater significance in fostering international understanding and coping with the international world for world peace and secureness. 12 In 1972, the Whitlam Government signed the International Covenant on Civil and Political Right (ICCPR), but it was not ratified for another 8 years. In order to respond to the ICCPR, the Australian Human Rights Bill was introduced in 1973. However it failed when the
8 Source: Firth, op.cit., vii-viii. 9 Gough Whitlam, 1983, cited Elliott, op.cit., p.182; Whitlam identified that poverty, overpopulation and mal-distribution of the world’s wealth were real problems in the world (Elliott, op.cit., p.186.) 10 Wayne Reynolds, ‘Labour Tradition, Global Shifts and the Foreign Policy of the Whitlam Government’, in Lee and Waters (eds), op.cit., p.111. 11 Nancy Viviani, ‘The Whitlam Government’s Policy Towards Asia’, in Lee and Waters (eds), op.cit., p.100. 12 James Curran, The Power of Speech, Melbourne University Press, Melbourne, 2004, p.97.
61 Whitlam Government finished,13 and ratified the International Convention on the Elimination of All Forms of Racial Discrimination and passed the Racial Discrimination Act 1975 (Cth) in 1975.14 Whitlam enthusiastically promoted anti-colonialism and self- determination, even more than Evatt did.15 The Whitlam Government rejoined the UN Committee of 24 on Decolonisation, and supported the independence of Papua New Guinea in 1975.16 Whitlam also disagreed with apartheid in South Africa, the white minority regime in Rhodesia and supported independence for Portuguese colonies.17 Australia under the Whitlam Government contributed 0.7 per cent of Gross Domestic Product (GDP) for aid programs in accordance with the UN request. 18 Australia’s foreign aid also increased, while the government demonstrated sympathy with some of the developing countries. Financial contributions grew to $10.6 million in 1972, $13.2 million in 1973 and $26.4 million in 1974.19 Moreover, Whitlam was concerned with the potential dangers of in a destructive nuclear power, and ratified the Nuclear Non-Proliferation Treaty.20 It condemned the US’s decision to bomb North Vietnam in December 1972, and opposed the French nuclear tests in the South Pacific.21
13 Australian Human Rights & Equal Opportunity Commission (AHREOC), ‘Australian Rights Timeline’, http://www.hreoc.gov.au/human-rights/human-rights-dialogue/timeline.html [Accessed 17 February 2006]; Australian Human Right Bill was introduced, however, it was withdrawn due to many criticism and hostility. 14 Resource: Caslon Analytics profile: human rights in cyberspace, http://www.caslon.com.au/humanrightsprofile13.htm [Accessed 22 May 2006]; Gregory Pemberton, ‘Whitlam and the Labour Tradition’, in David Lee and Christopher Waters (eds), Evatt to Evans: The Labour Tradition in Australian Foreing Policy, Allen & Unwin, St. Leonards, NSW, 1997, p.148; The ratification of this Convention impacted on the case, the Tasmanian Dam in 1983 under the Hawke government; AHREOC, op.cit.,; Whitlam Institute, http://www.whitlam.org/people/whitlam_gough.html, [Accessed 22 May 2006]. 15 Evatt under the Curtin government supported colonial rule and took a cautious approach initially regarding decolonisation (Pemberton, op.cit., p.153). 16 Albinski, cited Elliott, op.cit., p.187;Pemberton, op.cit., p.151; Ian Downs, ‘The response to External pressures’, The Australian Trusteeship Papua New Guinea 1945-75, Australian Government Publishing Service, Canberra, 1980, p.219; the Committee of 24 had authorisation to assume responsibility regarding to dependent territories under the UN Resolution 1514 of 1960. 17 Smith, ‘Internal politics and foreign policy’, op.cit., p.25. 18 The UN set 0.7% of Gross National Income or 70 cents in very $100 that the nation earns. 19 Pemberton, op.cit., p.147. 20 Curran, The Power of Speech, op.cit., p.114; The Gorton Government signed in 1968. 21 Curran, The Power of Speech, op.cit., p.107 and p.114.
62 In order to respond to international HR in states, in 1972, Whitlam removed the discriminatory immigration policy, known as the White Australian Policy, which reflected racial bias and had caused serious racial problems for the non-White people such as Chinese and other non-European immigrants. Abolishing the White Australian policy was one response to the new emphasis on the UDHR, Article 2 that claims non-discriminatory policy.22 In order to ensure non-discriminatory policy, the government also began to accept Vietnamese refugees from Vietnam where HR were violated under the communist regime after the Vietnam War. In 1973, Whitlam also introduced the concept of Australia’s multiculturalism, which was later formalised in 1989 as Australia’s public policy.23 In order to ensure its effectiveness, Whitlam introduced radio and language programs for ethnic minorities. 24 Moreover, Whitlam supported Aboriginal people by establishing the Department of Aboriginal Affairs in 1972 and gave assistance and granted land rights in the Northern Territory.25 Whitlam’s policy was regarded as having ‘symbolised a return to idealism’ on the grounds that Whitlam’s claim of respect for HR was for Australia’s national interests.26
The Fraser Liberal Government (1975-1983) inherited Whitlam’s policy to support international HR. Fraser maintained Whitlam’s momentum by committing Australia to the two major international HR convention, the ICCPR and ICESCR that had been ratified in 1975 by the Whitlam Government. The ICESCR came into force on March 1976. 27
22 In particular, the Minister for Immigration Al Grassby strove to abolish the White Australian Policy (Haigh, op.cit., p.5). 23 P. Kivisto, Multiculturalism in a Global Society, Blackwell Publishing, Oxford, 2002, pp.106-110; Commonwealth of Australia, Multicultural Australia: United in diversity, Updating The New Agenda for Multicultural Australia: Strategic directions for 2003-2006, http://www.dcita.gov.au/cca [Accessed 10 August 2004]. 24 Whitlam Institute, http://www.whitlam.org/people/whitlam_gough.html [Accessed 22 May 2006]. 25 Australia’s prime ministers, http://primeministers.naa.gov.au/meetpm.asp?pmid=22&pageName=inoffice [Accessed 5 February 2006]. 26 Clark cited Elliott, op.cit., p.183. 27 Signed in 1972, ratified in 1975 and entered into force on March 1976.
63 Fraser, like Whitlam, indicated his anti-colonialism and his approach was expanded to include developing countries in Africa. In 1977, the Fraser Government made great effects to link Australia with the “front-line” African countries and took an initiating role by gathering international pressure to end South Africa’s apartheid regime.28 Fraser proposed a Common Fund in 1980- 1982 and increasing aid assistance for Zimbabwe to $20 million from $5 million, for economic development.29 In order to support Papua New Guinea after independence, the official aid program of the Overseas Development Assistance Programme increased for 1973-1974 in accordance with Foreign Minister, Don Willesee’s recognition of ‘wider concern with international equality’. 30 He also condemned the Soviet invasion of Afghanistan during 1979-1989 (which the Whitlam Government had recognised) and the genocide carried out by Pol Pot in Cambodia that occurred 2,000,000 deaths during 1975-1979.31 Nationally, Fraser showed concern for Aboriginal people and acknowledged the ‘past history’ of Australian governments’ treatment such as neglect, deprivation, grinding poverty and persecution. It resulted in amending the 1976 Aboriginal Land Rights Act (NT). 32 Fraser also established the Commonwealth Ombudsman in 1977 to enhance democracy of citizens.33 The Fraser Government passed the Human Rights Commission Act in 1981 and established of the original Human Rights Commission.34 Moreover, Fraser
28 Alexander Downer, ‘Human Rights in Australian Foreign Policy’, speech on 30 July 1996, the Department of Foreign Affairs and Trade, Australia, http://www.dfat.gov.au [Accessed 15 April 2006]. 29 Patrick Weller, ‘Not Without Honour’, Malcolm Fraser PM, Penguin Books, Victoria, 1989, p.334; Firth, op.cit., p. 41. 30 82% of aid went to Papua New Guinea for 1973-1974 (Edward P. Wolfers, ‘Introduction: Australia’s Northern Neighbours: Independent or Dependent?’, Edward P. Wolfers (eds), Australia’s Northern Neighbours: Independent or Dependent?, Thomas Nelson Australia Limited, Melbourne, 1976, p.2. 31 B. Haigh, The Great Australian Blight, Otford Press, Sydney, 2001, p.11. 32 Australia’s prime ministers, op.cit.,; Curran, The Power of Speech, op.cit., p.134. 33 The High Commissioner for Human Rights, ‘Fact Sheet No.19 National Institutions for the Promotion and Protection of Human Rights’, http://www.unchr.ch/html/menu6/2/fs19.htm#annex [Accessed 25 May 2006]. 34 AHREOC, ‘Human Rights Medal and Awards’, http://www.humanrights.gov.au/hr_awards/2000.html [Accessed 17 February 2006] ; The federal Human Rights Commission Act and the Human Rights and Equal Opportunity Commission Act which followed in 1986 by the Hawke Government, incorporated international rights into federal law (Sev Ozdowski Oam, ‘Is the placement of young people with high support needs is nursing homes a breach of their human rights?’, AHREOC, papers
64 also built on Whitlam’s non-discriminatory immigrant policy, and accepted some 200,000 migrants from Asian countries, including nearly 56,000 Vietnamese refugees between 1975 to 1982.35 He enhanced multiculturalism (which Whitlam had earlier introduced implicitly). In 1978, Multicultural Affairs was established to support migrants by establishing migrant resource centres, funding for English language service and developing radio and television services for ethnic groups.36
Subsequent Australian Labor Governments asserted that Australia’s priority should have practical effects for improvement, promoting human rights on the ground with actual practical activities such as recognising universality, transcending national borders, and a proper subject for international dialogue.37 The Hawke Government (1983-1991) and the Keating Governments (1991- 1996) largely maintained international human rights issues. Both principles of ‘self-determination’ and ‘anti-colonialism’ were advanced as desirable general principles under the Labor Government. Bob Hawke upheld the concept of social justice in his foreign policy, arguing that the importance of commitment to anti-colonialism and self-determination, including anti-racism, re- distributive justice, the fight against poverty, and support for HR issues as the moral commitment of the Labor Government. 38 They also allowed human rights delegations from the UN and non-government organizations such as Amnesty International to investigate and make reports.39 The Hawke Government operated the 1991 Harare Declaration that reaffirmed the pre-eminence of HR claiming for continuing action to bring about the end of apartheid and establishing democratic, non-racial and prosperous South Africa.40 Hawke also opposed nuclear armament and the
in Conference on Young People In Nursing Homes 17 June 2003 Melbourne, http://www.humanrights.gov.au/disability_rights/speeches/2003/nursing.htm [Accessed 19 April 2007]). 35 Downer, ‘Human Rights in Australian Foreign Policy’, op.cit.,; The Fraser government responded to the Article 14, 1 of the 1948 UDHR states that “Everyone has the rights to seek and to enjoy in other countries asylum from persecution”. 36 Australia’s prime ministers, op.cit.,; Curran, The Power of Speech, op.cit., p.133. 37 Hanson, op.cit., p.81. 38 Elliott, op.cit., p.183 and p.187. 39 Haigh, op.cit., p.11. 40 Galligan, Roberts and Trifiletti, op.cit., p.145.
65 sale of Australian uranium. He condemned the invasion of Kuwait by Iraq in 1990. Minister for Foreign Affairs and Trade, William Hayden (1983-1988) disagreed with the American colonisation of Nicaragua and he argued for a non-military solution, as well as an arms control policy for the regional problems. Minister for Foreign Affairs and Trade, Gareth Evans (1998-1996), in the Hawke and Keating Governments) advocated a high degree of dynamism with regard to commitment to international law with Australia’s obligation to HR. He followed the arms control policy under previous Minister for Foreign Affairs, 1983-1988, Hayden’s idealism, and opposed France’s testing nuclear bombs again in the South Pacific in 1995. 41 Evans took the further step conceptualising as ‘purpose beyond ourselves’42 and emphasised Australia’s good international citizenship in his foreign policy, upholding ‘foreign policy is the equivalent of Boy Scout good deeds’.43 Evans promoted anti-colonialism and self-determination even more positively. His new international agenda also included international health issues such as AIDS, narcotics trade, refugee issues such as care and resettlement, and environmental concern. 44 Moreover, Evans demonstrated serious humanitarian concern for help to less fortunate countries such as Cambodia, Somalia, Namibia and Rwanda, with his expression ‘First and foremost’.45 Hawke developed bilateral relationships and promoted the regional HR dialogue. In particular, the Hawke Government encouraged China and Indonesia to support HR issues. In the Chinese Tiananmen Square massacre of 1989, Hawke officially expressed Australia’s anxiety and disgust by cancelling his visit to China. He protected Chinese students by promising not to send them back to China while their lives were in danger.46
41 Firth, op.cit., pp.63-65; The arms control policy continued until the Labour party left in 1996. 42 Hedley Bull, cited in Evans and Grant, 1995, cited in James L. Richardson, ‘The Foreign Policy of the Hawke-Keating Governments : An Interim Review’, Working Papers, Department of International Relations Research School of Pacific and Asian Studies Australian National University, Canberra ACT, p.16. 43 Evans, 1988 cited Elliott, op.cit., p.184. 44 Elliott, op.cit., p.187. 45 Firth, op.cit., p.67 and p.275. 46 Firth, op.cit., p.261:Hawke commented “The unanimous passage of this motion will mean that not merely the Government but the Parliament and the people of Australia will have put on
66 In order to effect international HR in Australia, in 1987, Hawke established the Commonwealth Human Rights Commissions by the Human Rights and Equal Opportunity Commission Act 1986 for the investigation of alleged discriminative infringements.47 It raised the significance of HR issues throughout the Commonwealth. Like Whitlam and Fraser, Hawke attempted to define a new concept of Australian ‘new nationalism’ that emphasised a tolerance of diversity and a respect for the freedom of the individual, rather than an intense unity deriving from the bonds of blood and culture.48 In 1989, Hawke formalised Australia’s multiculturalism, considering a good policy for the promotion of HR by celebrating diversity among many aspects such as cultures, religions, language, and it was also expected to resolve minority conflicts.49 Introducing Australia’s multiculturalism was also a response to HR that emphasised a new ideology of justice, peace and freedom,50 as Fields argues that the UDHR are to seek an approach beyond cultural difference.51 Under the Keating Government in 1993, the ALP developed the National Action Plans developed to enhance Australia’s support of HR according to the 1993 Vienna World Conference on Human Rights to improve states’ action on human rights.52 In 1995, the ALP established the Commonwealth Ministerial
the record for all time the totally unacceptable nature of the barbarity which has been practised and the tragedy which has eventuated in China.” (smh.com.au, ‘China is not a normal country’, http://webdiary.smh.com.au/archives/margo-kingstory/000914.html [Accessed 28 April 2006]. 47 AHREOC, ‘About the Commission’, http://www.humanrights.gov.au/about_the_commission/legislation/index.html#hreoca [Accessed 16 July 2006] ; While Fraser established the original Human Rights and Equal Opportunity Commission, Hawke officially established. 48 James Curran, ‘The “Thin Dividing Line”: Prime Ministers and the Problem of Australian Nationalism, 1972-1996’, Australian Journal of Politics and History, 48(4), 2002, p.470 and p.486. 49 W. Kymlicka, Multicultural Citizenship, Oxford Press, Oxford, 1995, pp.2-3; Zita Antonios, ‘Human Rights and Multiculturalism’, speech on 2 March 1998, Adelaide, Australian Human Right Equal Opportunity Commission, op.cit., 50 B. Parekh, Rethinking Multiculturalism, Macmillan Press Ltd., London, 2000, p.13; Parekh points out that under multiculturalism, the agreement of universal values embodied in the various statements on human rights are required and some degree of moral homogeneity is also forced; The principle related to fundamental human rights was one of outlines in the National Agenda, claiming that Australians actions toward ensuring that all Australians enjoy their basic human rights (A. Theophanous, ‘The Attacks on Multiculturalism and Immigration Policy, in M. Kalantzis and B.Cope (eds), Reconciliation Multiculturalism Identities: Difficult Dialogues, Sensible Solutions, Common Ground Publishing, Australia, 2001, p.52). 51 Fields, op.cit., pp.15-16. 52 DFAT, Human Rights Manual, op.cit., p.7. DFAT, ‘Human Rights’, http://www.draft.gov.au/hr/nap/natact-plan.html [Accessed 10 March 2006].
67 Action Group to address the promotion of democracy and the resistance to political repression and serious HR violations, in accordance with the 1991 Harare Declaration.53 The ALP signed the international human rights treaties and these treaties resulted in federal legislation for the implementation the international human rights. As noted in Table 2.2:
Table 2.2: Australia’s legislation of international human rights law.54 Australia Federation International Human Rights Treaties Legislation Sex Discrimination Act 1984 The Convention on the Elimination of All Forms of Discrimination Against Women Human Rights and Equal International Covenant on Civil and Political Opportunity Commission Act Rights Convention (ICCPR) 198655 Convention of the Rights of the Child Declaration of the Rights of the Child Declaration on the Rights of Mentally Retarded Persons Declaration on the Rights of Disabled Person Declaration on the Elimination of all forms of Intolerance and on Discrimination based on Religion or Belief ILO Convention Concerning Discrimination in Respect of Employment and Occupation. Privacy Act 1988 ICCPR Organization for Economic Cooperation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data Crimes (Torture) Act 1988 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Disability Discrimination Act ILO Convention Concerning Discrimination in 1992 Respect of Employment and Occupation Human Rights (Sexual ICCPR Conduct) Act 1994 Evidence Act 1995 ICCPR Racial Hatred Act 1995(Cth), International Covenant on Economic, Social
53 Firth, op.cit., p.261 ; DFAT, ‘The Commonwealth Ministerial Action Group’, http://www.dfat.gov.au/intorgs/commonwealth/aus_comm_3.html [Accessed 12 December 2005]. 54 Resource: DFAT, Human Rights Manual, op.cit., p.24; AHREOC, op.cit.,: Elizabeth Evatt AC, ‘Meeting Universal Human Rights Standards: the Australian Experience’, presented as a lecture in the Department of the Senate Occasional Lecture Series at Parliament House, on 22 May 1998. 55 Hawke tried to pass a Bill of Rights, but it was failed (Firth, op.cit., p.250).
68 extending the coverage of the and Cultural Rights Racial Discrimination Act 1975
It is important to distinguish between domestic and international law and policy as described in Chapter 1. There is no enforcing legislative power to implement human rights treaties because the UN exists as a supranational body. Australia’s ratification of the UN human rights treaties means that Australia must impose obligations on states to ensure that laws are consistent with the rights set out in the ratified convention.56 There is the use of international human rights as an influence upon the development of the Australian law. For instance, the Racial Discrimination Act 1975, which was implemented the International Convention on the Elimination All Forms of Racial Discrimination57 was impacted on the High Court decision to the Queensland Governments in the Koowarta Case, by judging that racial discrimination was unlawful and conferred enforceable rights on individuals of Aboriginal people.58 The Mabo Case in 1992 was also a case where indigenous people were allowed to have native title to land based on the Racial Discrimination Act 1975.59 Evans acknowledged ‘past wrongs done to Aboriginal people’ and said that much remained to be done ‘before Aboriginal Australians can be truly said to be equal participants in the Australian community’. Moreover, in the Tasmanian Dams case in 1983 60 the High Court recognised the importance of ensuring that the Commonwealth had the power to enact legislation on matters subjects of international human rights treaties, which is the UN World Heritage Conventions.61
56 Kofi Anann, Secretary-General states, “Since respect for human rights is central to the legitimacy of the State order, human rights should be nurtured locally by branches of government, national human rights institutions and civil society”, cited Mertus, The United Nations and Human Rights, op.cit., p.4. 57 The International Convention on the Elimination all Forms of Racial Discrimination that Australia ratified in 1975. 58 Koowarta v Bjelke-Petersen & Ors, Queensland v Commonwealth, on May 11, 1982;The High Court of Australia decided the validity of the Racial Discrimination Act 1975 and judged that the blocking the purchase of land by Aboriginal people in northern Queensland were to be discriminatory (cited Allan Gyngell and Michael Wesley, Making Australian Foreign Policy, Cambridge University Press, Cambridge, 2003, p.181. 59 Gyngell and Wesley, op.cit., p.181. 60 The construction of the Gordon-below-Franklin dam in Tasmania; The High Court supported a treaty obligation was sufficient to create an ‘external affair’ under the Constitution. 61 Gyngell and Wesley, op.cit., p.181.
69
Human Rights with Globalisation
Thus, from the 1970s, Australia was relatively consistent in its approaches to HR. As is described in the literature, the approach was proactive in the face of the rise of ideology that emphasised global citizenship within globalisation. As was discussed in Chapter 1, globalisation has had a profound impact on states’ attitudes to HR in terms of their global ideology. Yet, the study of McCorquodale, a professor of international law and human rights, demonstrates that HR are an integral part of globalisation.62 The globalisation agenda became increasingly embedded in HR ideas and policy in Australia. Galligan, Roberts, and Trifiletti argue that the support and protection of HR are outstanding instance of global issue movement. They also assert that Australia had championed HR internationally.63 It might be fair to say that Australia’s HR approaches were influenced by the rise of the global human rights paradigm in much of the last quarter of the twentieth century. In investigating the efforts to contribute to, and nurture, international HR with shifting to global methods, Australia’s HR approach cannot be separated from economics.64 Australia’s strong economic priorities should also be noted. This is also linked to the pursuit of Australia’s national interests based on the notion of Australia’s pragmatism. Galligan, Roberts and Trifiletti assert that Australia has been pragmatic in both domestic politics and international relations. 65 Pragmatism is regarded as realpolitik that uses political convenience for solving problems in a practical and sensible way for the sake of international interests, rather than by having fixed principles, ideas or theories.66 Moreover, a couple of explanations show that realpolitik is a state
62 McCorquodale with Fairbrother, op.cit., p.739. 63 Galligan, Roberts and Trifiletti, op.cit., p.148. 64 Firth, op.cit., p.260. 65 Galligan, Roberts Trifiletti, op.cit., p.145. 66 Haigh, op.cit., p.26.
70 policy with practical real considerations to pursue national interest, rather than complying with moral or idealistic ideas.67 Pragmatism under the Whitlam Government was essentially applied to HR approaches for national interests. Under the Whitlam Government, Australia’s ambassador of Indonesia, Woolcott emphasised pragmatism, stating “that is what national interests for foreign policy is all about”.68 Australia’s pragmatism for economic interests was essentially applied to HR approaches. Economic improvement was definitely important in Australia. Australia’s economy performed poorly throughout the last year of Whitlam’s regime, 1974-75; inflation increased from 3.3 per cent to 16.7 per cent, the number of unemployment increased from 84,000 to 278,000 and the growth rate of the economy declined to 2 per cent from 6.1 per cent.69 With the oil price shock, Government’s expenditure was the lowest level in 1973-1974.70 Until World War II, Australia had relied on trade and security with the United Kingdom (UK). However when the UK officially joined the European Community in 1973, Australia realised that it had to reduce its reliance on the UK. Whitlam saw greater significance in coping with the international world, particularly towards Asian countries where rapid economic improvement was taking place, and which were thus increasingly attractive trade for Australia. Whitlam’s speech during 1972 emphasised the importance of Asian countries and his regular visits there clearly indicated the importance which he attached to them. He was the first Prime Minister to visit China officially in 1973.71 There is no doubt that Whitlam’s attention to Asia was partly for economic advancement.
67 American Heritage Dictionary, American Heritage New Dictionary of Cultural Literacy, 3rd Edition, ‘realpolitik’, http://www.dictionary.reference.com/browese/realpolitik, [Accessed 17 May 2007]. 68 Haigh, op.cit., p.26. 69 Firth, op.cit., p.105. 70 Michael Pusey, Economic Rationalism in Canberra, Cambridge University Press, New York, 1991, p.147. 71 Speech by the Attorney-General on behalf of the Minster for Foreign Affairs, The Hon. Alexander Downer, MP, ‘Australia and Recognition of the People’s Republic of China: 1949- 1972’, http://www.foreignminister.gov.au/speeches/2002/021017_fa_ag_ausandchina.html. [Accessed 17 February 2006].
71 However, Australia was being criticised as a ‘racist country’ by the rest of the world in terms of its immigration and Aboriginal policies.72 Whitlam recognised that supporting HR would demonstrate Australia’s high ethical view and good image internationally, and so it was deemed advantageous for future economic transactions. Whitlam tried to ameliorate the adverse perception of Australia by providing clear guidelines for governmental action for the implementation of HR. In this regard, it might be said that abolishing the White Australia Policy was expected to demonstrate a high ethical view and good image internationally, especially towards Asian countries. The Fraser Government also recognised the importance of effectiveness in global integration with Asia and so tried to strengthen ties. The economic condition under the Fraser Government was initially desperate, being afflicted by high inflation, low growth and increasing unemployment. The growth rate during 1972-1982 was 2 per cent a year on average.73 In comparison, the growth rate in Hong Kong was 9 per cent; Sough Korea, Singapore and Taiwan were 8 per cent each.74 Fraser’s first visit overseas as Prime Minister was to Japan and China.75 Curran, a scholar in the University of Sydney, asserts that Fraser’s HR approaches towards the Third World were based on pragmatism.76 Fraser’s approach was associated with a consideration of ‘direct political and economic self-interests’ by consolidating American interests in the Western Pacific. 77 Moreover, Burke asserts that what characterised the Fraser Government was ‘an active and enlightened realism’.78 However, Australia’s HR approaches under the Whitlam and Fraser Governments have been accused of inconsistency or making selective choices, in particular towards some neighbouring states. Australia’s selective HR stances when economic issues were at stake are seen in its foreign policy. After
72 Kevin Dunn, James Forrest, Ian Barnley and Amy McDonald, ‘Construing Racism in Australia’, Australian Journal of Social Issues, 39(4), 2004, p.410. 73 Pusey, op.cit., p.147. 74 Firth, op.cit., p.109. 75 Curran, The Power of Speech, op.cit., p.185. 76 ibid., p.184. 77 ibid.,. p.189. 78 Anthony Burke, In fear of security: Australia’s Asian anxiety, Pluto Press Australia Limited, Annandale, NSW, 2001, p.156.
72 the Second World War, Australia has applied trade and economic alliance as pragmatism. 79 Haigh, a former Australian diplomat from 1972-1994, argues that Australian politicians and bureaucrats have rose coloured glasses with which to view the countries of the west, and these glasses magnify the importance of economic development and minimise human rights abuse.80 Cotton points out that the inconsistency of Whitlam’s policy regarding an affirmation of the importance of self-determination and post-colonial approach to regional policy. 81 While Australia acknowledged Papua New Guinea (PNG) independence in 1975, the Whitlam Government refused to recognise the pro-separatist movement in Bougainville on September 1975, two weeks before PNG was independent.82 Fraser was also accused of inconsistent HR approaches towards East Timor as we will see in Chapter 3. Under Hawke and Keating, Australia presented increasingly pragmatic stances with regards to HR. Elliott asserts ‘the pragmatism of national interests makes into the Labor Party’s idealism’. 83 McDougall asserts, “the way in which Australia has attempted to protect its economic interests in the new world situation has been replicated in relation to other issues of the ‘new international agenda’ such as the environment and human rights”.84 Elliott emphasised the Labor Party’s realpolitik, pointing out that, “Labor’s idealism has always been tempered by realism and its internationalism always mediated through national interest, giving rise to a tradition of ‘idealistic pragmatism’ to borrow a phase from Gareth Evans”. 85 Thus, for the Labor Government, the implementation of HR not only contributes to the continued development of the international community, but also is the optimum aspect to build a nation.86 Accepting international HR was essential for the effective pursuit of Australia’s national interests.
79 Galligan, Roberts and Trifiletti, op.cit., pp.141-142. 80 Haigh, op.cit., p.7; Wesley, ‘Setting and Securing Australia’s National Interests’, op.cit., p.167. 81 Cotton, op.cit., pp.7-9. 82 Curran, The Power of Speech, op.cit., p. 180. 83 Elliott, op.cit., p.190. 84 McDougall, op.cit., p.12. 85 Elliott, op.cit., pp.184-190: There is an irony that Australia’s approach was neither principled nor pragmatic like the government. It was ill-conceived assumptions and proposals what bound to fail (Haigh, op.cit., p.26). 86 Galligan, Roberts and Trifiletti, op.cit., p.5.
73 As was evident from the decisions of the Whitlam and Fraser Governments, Australia’s HR stance under the Hawke/Keating Governments based on notions of pragmatism also demonstrated inconsistent HR approaches. There are criticisms; ‘it is doubtful that Australia meets the absolute standard of consistency that Evans claims for it’,87 and ‘lacking strategic imagination’ or ‘of being in a ‘political double-bind’.88 What is crucial is to that the Labor Government’s pragmatism demonstrated a changing approach. There are important parallels with economic globalisation under the Labor Party. There were criticisms surrounding aspects of HR concerns and the promotion of economic globalisation.
Australia’s economic globalisation
As noted earlier, Australia’s economic condition was difficult during the years of the Whitlam and Fraser Governments. Economic prosperity was always an important objective in Australia. At the beginning of the twentieth century, Australia’s living standards were among the highest in the world.89 Australia’s early experiences of economic development and prosperity had a decisive role shaping Australia’s economic priorities between the gold rushes and the First World War. 90 By the 1870s, gross domestic product (GDP) per capita was more than one-third greater than the wealthiest countries such as Britain, Belgium, or the United States.91 During 1949-72, under the Menzies Coalition Government, many believed they experienced what was called a ‘golden age’, with many jobs and rapidly expanding economy.92 It was believed that that Australia society enjoyed the highest living standards in the world.93 It became
87 Woodard, cited Elliott, op.cit., p.190. 88 Burke, in fear of security, op.cit., p.160. 89 John Daley, ‘The Intangible Economy and Australia’ in Ian Marsh (eds), Australia's Choices; Options for a Prosperous and Fair Society, Sydney, University of New South Wales Press Ltd., Sydney, 2003, p.25. 90 Wesley, ‘Setting and Securing Australia's National Interests: The National Interests as Values’, op.cit. p.168. 91 Williams, 1985, cited Wesley, ‘Setting and Securing Australia's National Interests: The National Interests as Values’, op.cit., p.168. 92 Firth, op.cit., p.105. 93 IPA Review, 1988/89, cited Wesley, ‘Setting and Securing Australia's National Interests:
74 accepted as part of the common interests to maintain and over time, increase living standards. 94 As a result, successive governments were obliged to maintain high living standards for the majority of Australia. In the late 1970s, the 'New Right' emerged which promoted pro-business, free market policies in Australia. 95 The policy, so called ‘economic rationalism’ (economic globalisation) encourages a strong competitive capitalism as the source of great economic benefits rapidly gained acceptance.96 In the early 1970s, Whitlam had recognised that the US provided its leadership to establish a new trading paradigm such as removal of protective barriers and return to principles of free market competition on global basis and stated ‘better business for the US to have cooperative partners rather than resentful allies’.97 While Australia had relied on the trade protection policy, before the early 1970s, the Whitlam Government took the first radical legislative steps to end its protectionism, slashing tariffs by 25 per cent across the board in 1973.98 Yet, Fraser modified economic reform and took few initiatives with regard to economic rationalism. 99 During the 1970s and 1980s, Australia oscillated between a commodity export culture and protectionism because of the fluctuation of commodity prices in international markets and the persistence of current account deficits. The tradition of protectionism was becoming increasingly problematic. 100 International integration was getting imperative to Australia if it was to improve its economic. In response to this worsening crisis, in 1983, the Hawke
The National Interests as Values’, op.cit., p.168. 94 Stephen Bates, ‘The Foreign Economic Policies of the Hawke and Keating Government”, in Lee and Waters (eds), op.cit., p246. 95 Michael Pusey, The Experience of Middle Australia, Cambridge University Press, Cambridge, 2003, p.8. 96 Firth, op.cit., pp.110-111; Pusey, The Experience of Middle Australia, op.cit., pp.8-9. 97 Higgott 1989 cited Galligan, Roberts and Trifilett, op.cit., pp.138-139. 98 John, Wiseman, Global Nation? : Australia and the Politics of Globalisation, Cambridge University Press, Cambridge, 1998, p.40. 99 Australia’s prime ministers, op.cit., 100 Nancy Viviani, ‘The Bureaucratic Context’, in F.A. Mediansky (eds), Australia in a Changing World, Maxwell Macmillan Publishing Australia, Botany, NSW, 1992, pp.46-47.
75 Governments consequently adopted the orthodox adjustment neo-liberal global strategy derivative from the so-called Washington Consensus.101 Australia’s protectionism was reduced significantly 1988 and 1991 based on the government’s recognition that protectionism would not work to maintain Australia’s high level of living standards.102 Thus, the Government recognised that exports were a way of reducing what had traditionally been a balance of payments constraints on economic improvement in Australia.103 Hawke claimed that globalisation was good and inevitable. 104 Evans mentioned that seeking improved standards world wide in human rights was inherently valuable.105 Hawke included economic growth as part of his foreign policy, arguing not only for coordination of Australia’s domestic and foreign economic policies but also to integrate into the Western Pacific.106 With economic globalisation, a set of neo-liberal agencies such as the IMF, the World Bank, the WTO emerged, and their neo-liberal ideology has influenced Australia’s decision making. While the Labor Party decided to embrace economic globalisation, it did not accept the pure free market ideology, applying lowered protection, although not to zero.107 The Labor Party made a wide range of reforms with neo-liberal elements including financial deregulation, privatisation, a tightening of welfare eligibility, and reductions in tax for corporation’s producing maximum profit, free trade and labour market deregulation.108 In this context, the Labor Government was driven by the imperative of transforming into a competitive producer and exporter of high-value-added manufactured products and service in the 1980s. 109 In particular, foreign
101 Claes Brundenius and John Weeks, ‘Globalisation and Third Word Socialism’, in Claes Brundenius and John Weeks (eds), Globalisation and third World Socialism : Cuba and Vietnam, Palgrave Publishers Ltd., New York, 2001, p.3. 102 Wiseman, op.cit., p.40: Wesley, ‘Setting and Securing Australia's National Interests :The National Interests as Values’, op.cit., p.169. 103 S. Bates, ‘The Foreign Economic Policies of the Hawke and Keating Government’, in David Lee and Christoper Waters (eds), op.cit., p.246; Viviani, ‘The Bureaucratic Context’, op.cit., p.47. 104 R.J. Hawke, 1984, policy speech cited Bates, op.cit., pp.234-235. 105 Singer and Gregg, op.cit., p.14. 106 R.J. Hawke, 1984, policy speech cited Bates, op.cit., pp.234-235. 107 Firth, op.cit., pp.115-117. 108 Tim Conley, ‘The Domestic Politics of Globalisation’, Australian Journal of Political Science, 36(2), 2001, p.225. 109 Wiseman, op.cit.,pp.43-44.
76 investment was very much encouraged through MNCs. Moreover, MNCs within Australia strongly supported the neo-liberal program as well. With these new ways, Australian companies such as BHP, the Cozinc Rio Tino (CRA) and were shifting across the world. For instance, Australia owned the copper mine business through the CRA which had a 54 per cent share and maintained the copper mined with profits under the PNG’s government.110 While Australia’s direct investment overseas was A$4,2 billion in 1980, was A$32.3 billion by 1989.111 The Labor Party’s central strategy was competitiveness. Australia embraced global free trade market through the General Agreement on Tariffs and Trade (GATT). Hawke respected the relationships within the Asia-Pacific regions. Australia played a key role in the Asia-Pacific Economic Cooperation (APEC) in 1989, to develop regional free trade and economic cooperation.112 Later the Keating Government further promoted economic globalisation with a major objective of rapid economic growth. 113 The Government pursued a more global way shifting towards neo-liberal principles.114 Keating acknowledged: We know its shape; we have an agreed institutional structure; we share with its other members a common agenda for change. Just as the Bretton Woods agreements after the Second World War established structures in the IMF and the World Bank, which enabled the world to grow and prosper.115
Evans expected that Australia could have a decent power in the international arena as a middle-sized nation.116 With economic liberalisation, it has influenced foreign policy entirely and foreign trade became the main foreign policy theme in 1987.117 Australia’s foreign policy has encompassed
110 R. Hinman, ‘Australian ‘aid’ maintains Bougainville war’, Green Left, 1993, http://www.greenleft.org.au/1993/115/5465 [Accessed 28 December 2006]. 111 Gerald Manners, ‘Unsolved Conflicts in Australian Mineral and Energy Resource Policies’, The Geographical Journal, 158(2), 1992, pp.133-134. 112 Galligan, Roberts and Trifiletti, op.cit., p.143. 113 DFAT, 1988 cited Bates, op.cit., p.235. 114 Bell, op.cit., p.358. 115 Keating 2000 cited Galligan, Roberts, and Trifiletti, op.cit., pp.143-144. 116 Galligan, Roberts and Trifilett, op.cit., p.145. 117 Wesley, 'Setting and Securing Australia's National Interests: The National Interests as Values’, op.cit., p.198; Viviani, ‘The Bureaucratic Context’ op.cit., p.47.
77 more than economic efficiency through global trade system and investment with the appearance of Australia’s ‘progressive competitiveness’. 118 It is important to notice that this shift toward accommodating neo-liberal ideology results achieved from the reforms would have had both direct and linkage effects on HR approaches. It means that HR approach were sublimated to global market considerations, despite high idealism for HR. Australia under the Hawke and Keating Governments, tried to balance its efforts at being a good international citizen with its pragmatic self-interests.
Trade & Human Rights in Australia
The priority of the Hawke and Keating Governments’ approaches involved development assistance, HR and the environment. 119 Australia’s economic policy was increasingly aligned with neo-liberal ideology on the grounds that the bilateral and multilateral structure of economic relationship is compatible with diplomacy of HR concerns. This was based on the idea that economic globalisation could promote freedom through its commitment to democracy and HR. However, the Labor Party’s stance, being a good international citizen with its pragmatic self-interests commercial interests, was inconclusive in terms of dominate rather than HR. In this regard, aid programs also came to reflect economic aspects. As Evans claimed that aid programs serve both humanitarian and national interests.120 The Labor Party implemented development assistance that sought to satisfy multiple motivations such as humanitarian concerns, commercial interests and foreign policy, reflecting the Labor Party’s idealistic and pragmatic approaches.121 The Labor Party stood on the minimalist approach that emphasised on trade policy with HR. Trade rules under minimalist approach were formulated and negotiated on HR.
118 Wiseman, 1996 cited Bell, op.,cit., pp.360-362. 119 Evance and Grant, 1995 cited Richardson, op.cit., p.17. 120Richardson, op.cit., p.17. 121 Elliott, op.cit., p.192.
78 Nevertheless, the aid budget for overseas weakened. While overseas aid was claimed to be an important component of Australia’s foreign policy in 1967,122 and Whitlam endorsed the 0.7 per cent ODA/Gross National Income (GNI) international objective set by the UN, the Australian aid program during the Hawke/Keating Governments did not increase. The record of aid contribution declined in volume relative to the GDP. There figure shows that
0.46 per cent in 1984-85, and 0.33 per cent in 1995 respectively.123 The OECD advised Australia to support higher contributions.124 Many critics attacked the role of the Labor Party’s aid. However, Evans, Ministers for Foreign Affairs and Trade, declined such criticisms, emphasising Australia’s aid commitment with a high quality professionally administered program.125 Moreover, Hayden stated that aid would grow when Australia’s economy improved, but instead, aid contributions continued to decline after Australia’s trade improved. 126 Critics continued to point out that the purpose of Australia’s aid programs was strongly connected to its national interests including economic and security interests.127 Australia’s aid goes to over 100 countries in the world, however, Australia was accused of being inadequate, unfair and inconsistent towards any special groups. Australian aid concentrates some particular area such as, East Asia, Papua New Guinea and the South Pacific. While aid programs have declined since 1983, aid to South East Asia increased in the 1990s for the benefit of Australia’s trade and investment in the area.128 Since Australia embarked on globalisation, the country has followed international trend of aid, which is called ‘good governance’. This has derived from an idea that propriety and democratic justice should be available to all citizens of the world.129 It advocates reform programs in areas such as, rule of law, legislation, judiciary, policing, bureaucracy, economic management, trade
122 ibid. p.192. 123 Elliott, op.cit, pp. 191-192. 124 Organization for Economic Co-operation and Development (OECD), ‘DAC Peer Review of Australia, 2005, p.11, http://www.oecd.org/, [Accessed 15 January 2006]. 125 Firth, op.cit., p.275; Richardson, op.cit., p.18. 126 Bill Hayden, ‘Policy and economics of foreign aid’, Economic Analysis and Policy, 17 (1), 1987, p.1. 127 Helen, Hughes, ‘Aid has failed the Pacific’, The Centre for Independent Studies, http://www.cis.org.au/IssueAnalysis/ia33/htm [Accessed 25 January, 2006]. 128 Firth, op.cit., p.275. 129 Firth, op.cit., p.9.
79 capacity reform, human rights and electoral system.130 It is also a part of a wider package that involves free market reform.131 In the same vein, the 1993 strategic review emphasised that cooperation with the countries in Asia was important to Australia. Additionally, the 1993 National Centre for Development Studies in Canberra reports that Australia promoted national development in the South Pacific region with neo-liberal ideology under the project, Pacific 2010.132 With respect to regional economic cooperation and institution-building, the ALP was aware of the political, military and economic implication of its geographic position with East and Southeast Asia countries. Over 60 per cent of Australia’s trade came to be concentrated in the region itself. OECD figures also claims that Australia’s ODA is ‘tied aid’ with the figure, 40.7 per cent requiring that the donee countries purchase products from Australia through Australian companies.133 This means that Australia’s aid programs connect closely to trade to donor countries. Under the Hawke and Keating Governments, Australia’s changing HR approaches were evident its foreign policy towards the Asia Pacific region and China. When Whitlam officially visited to China in 1973, China has been an important country to Australia as trading partner.134 Fraser also had a strong concern to China , initiating an aid program.135 As was discussed in Chapter 1, China’s economy has increasingly grown since China embarked on economic reform after the death of Chairman Mao in 1976.136 While Hawke expressed official revulsion at the 1989 Tiananmen in China, Australia’s actions in response to this issue were lukewarm, and, so, for example their aid program only temporarily stopped. Thus responses to the human rights violation in China was tempered by China’s place as a partner country in multilateral human rights dialogue and as an attractive economic
130 Susan Cirillo, ‘Australia’s governance aid: Evaluating evolving norms and objectives’, Discussion Papers, Asia Pacific School of Economics and Government, The Australian National University, 2006, p.5. 131 Firth, op.cit., p.9. 132 Firth, op.cit., p.287. 133 Singer and Gregg, op.cit., p.24. 134 Downer, ‘Australia and Recognition of the People’s Republic of China: 1949-1972’,op.cit., 135 Fraser and Foreign Minister, Andrew Peacock acrimoniously blamed the Khmer Rouge regime, the communist organization, in Cambodia in 1978 ; Firth, op.cit., p.223. 136 Tony Edwards and Chris Rees, International Human Resource Management, Prentice Hall, Harlow, England, 2006, p.130.
80 opportunity. The aid program thus resumed in 1991.137 At the same time, both Australia and China agreed to exchange human rights delegations in 1991, and Australia sent human rights delegations to China in 1991 and 1992.138 Evans argued that exchanging human rights delegations between the two countries would enhance HR for both countries by being more open to criticism. However, China was unwilling to send human rights delegations to Australia.139 Yet, the Labor Party was moderate in response to China’s action and HR approach. Moreover, the US Clinton regime recognised China as the “most favoured nation states” and claimed to de-link trade and HR with China in 1994, Keating also later followed Clintons’ policy for de-linking HR and trade for enhancing national interests. China found that HR issues were good tactics for trade reason.140 Australia recognised that development of HR in China was the Labor Party’s economic purpose. Thus, HR had become a tradeable commodity. Moreover, aid programs under the Hawke/Keating also reflected their own interests by subsidising Australia’s business companies to enable them to tender for development projects such as creating and maintenance of infrastructure in China. 141 Australia’s approach presented defence of trade-off between HR and development. It could be said that aid programs represent investment to gain more returns in Australia. Through aid assistance to Indonesia, the Labor Government was also keen on providing HR with economic globalisation with Indonesia drawing on the assertion of boosting political stability in Indonesia. Indonesia was the second recipient state of Australian aid (after Papua New Guinea). 142 The Labor Party subsidised $124 million to Transfield Construction Company to build bridges in Indonesia worth $470 million, resulting in a boost in the demand for the Broken Hill Property Company Limited (BHP) in Australia.143
137 Firth, op.cit., pp.260-261. 138 World Tibet Network News, ‘China Unwilling to Send Human Rights Team to Australia’, March 23, 1994, http://www.tibet.ca./en/wtnarchive/1994/3/23_1.html [Accessed 14 May 2006]. 139 Firth, op.cit., p.263. 140 ibid., p.262. 141 ibid., p.282-283; However Howard stopped this way to reflect transparency of aid. 142 McDougall, op.cit., p.206. 143 Firth, op.cit., p.277 and pp.282-283.
81 Since Indonesia’s independence in 1949, Australia’s relationship with Indonesia had increasingly been important in economic and security aspects.144 Keating was remarkable to emphasise more strong relationship with Indonesia. Under APEC, the Bogor Declaration in 1994 with Indonesia strengthened their unity by placing a special relationship between Suharto and Keating.145 Under the Keating Government’s Engagement with the Pacific-Asia, Australia strove to keep a good relationship with Indonesia. Australian economic relationship with Indonesia was a significant strategic policy for Australia interests in the region.146 Paul Keating stated “No country is more important to Australia than Indonesia”.147 The Labor Party supported a theory derived from Canberra, which was called ‘trickle down effect’ saying that the growth of middle class in Indonesia would lead to economic benefit to Australia, framing and small business class. It dovetailed into the ideology of the pro-Jakarta lobby that promoted economic prosperity.148 Importantly, the cooperation with Jakarta also gave significant practical economic benefit to Australia. In this regard, Australia’s exports to Indonesia increased to US$ 1,042 million in 1990 from US$ 742 million in 1989. In 1996, US$2,444 million was recorded.149 However, Keating’s efforts to maximise the global trade system to enhance national interests with Indonesia revealed inconsistency with ideals of HR approaches. While Woolcott addressed the importance of economic growth for the establishment of democratic institutions in Indonesia, in 1993, Australia and pro-Jakarta lobby groups supported Indonesia’s HR stance that argued the importance of cultural difference.150 Australia was thus tolerant towards friendly dictators, Indonesia. However, this stance is at variance with Australia’s claims to universality in HR.
144 Keating stated, “No country is more important to Australia than Indonesia” (Keating 1994, cited McDougall, op.cit., p.216). 145 Galligan, Roberts and Trifiletti, op.cit., p.143; Indonesian military officers were actually trained in Australia (Australia-Indonesia Security Agreement in 1995 cited Burchill, ‘East Timor: Towards Rwanda’, op.cit.,) 146 McDougall, op.cit., p.206. 147 Keating 1994 cited McDougall, op.cit., p.216. 148 Haigh, op.cit, p.14. 149 Sources: International Monetary Fund, 1986, 1990, 1997 cited McDougall, op.cit., p.206. 150 Hugh, op.cit., p.15.
82 Moreover, Australia was lukewarm about Indonesia’s role in the Dili massacre in November 1991. Despite conflicting evidence, Australia did not blame Indonesia, as was evident in Evans’ comment, that the ‘Dili massacre was not a state act but the product of aberrant behaviour by a subgroups within the country’.151 Australia’s blind eye towards Indonesia derived from the high priority given to the economic relationship with Indonesia. Trade relations held precedence in the relationship with Indonesia and East Timor’s HR was ignored, and will be discussed below.
The HR approaches in relation to trade demonstrated not only inconsistency but also a negative direction towards HR support. In this regard, Labor’s aid program neither gave proper support for HR development nor promoted political stability in Papua New Guinea (PNG) after independence. The Labor Party was accused that Australia supported PNG’s war on the people of Bougainville, giving a great of aids contribution and training PNG’s army. During 1989-1998, the war in Bougainville occurred, following Bougainville’s secession movement from PNG. The dispute was over mineral resource control, inequitable sharing of benefits from mineral resource use, and compensation for environment and resource destruction.152 While both Hawke and Keating commented that Australian aid was not used for military purposes, Australia gave the PNG Defence Force (PNGDF) almost $32 million per annum in direct military aid. Australia assisted with $340 million a year, that was a quarter of the Australian aid budget which went to PNG.153 During this war, the PNGDF violated HR in Bougainville including death of 5,000 to 10,000 thousand Bougainvilleans, disappearances, torture or ill-treatment, rape and hostage-taking.154 Hinman has criticised the Labor Party arguing that government policy violated Bougainvillea indirectly, through overt support for PNG directly.155 Firth points out that Australia’s reason to
151 Evans, 1991 cited Firth, op.cit., .62. 152 Firth, op.cit., pp.192-193. 153 Hinman, op.cit., ; Not only giving aid, Australia trained the PNGDF. 154 Firth, op.cit., pp.192-193; Amnesty International, ‘Bougainville- International Action Essential as violations Continue’, 1997, http://web.amnesty.org/library/Index/ENGASA340031997?open&of=ENG-PNG. [Accessed 31 January 2007]. 155 Hinman, op.cit.,
83 side with PNG derived from its strategy in terms of strong ties of trade, investment and security towards the Torres Strait.156 Moreover, AidWatch (a NGO which supports humanitarian relief) criticises Australia’s role to assist and promote dominant corporatist interests to ensure large profits at the expense of HR in local communities and their environment. In Bougainville, since the late 1970s, Australian owned, CRA dumped 20 million tonnes of rock waste a year into the sea at Lihir Gold Project in the north-east coast of PNG. 157 As to gross infringements of environment rights, since 1984, the mine MNCs including Australian BHP dumped 80,000 tonnes of tailings and 100,000 tonnes of mine wastes directly in the Ok Tedi River. The river had irreversible environmental damage by severe drought and drove people into poverty as they lost their livelihood as a direct consequence of mining activities.158 As mentioned earlier, the Labor Party supported environmental concerns as inherent to their HR promotion. They had signed the London Convention that prohibits behaviour infringing protected rights such as the practice of dumping toxic waste in the ocean. However, the Australian government supported the BHP by providing the mine with the risk insurance. 159 The Australian public and the media criticised not only BHP but also the role of the Labor Government. In particular, Australian environmental groups criticised that the Labor Government did not require BHP to comply with the environmental regulations when MNCs’ extraterritorial operation.160 Australia under the Labor Party increasingly supported neo-liberal concepts, with MNCs to make the profits at the expense of HR in developing countries. Australia supported positively Australian mining giant companies who were profit making actors, without demonstrating moral obligations. In
156 Firth, op.cit., p.204. 157 Wiseman, op.cit., p.53 ; Liam Phelan, ‘How does PNG pay for its war on Bougainville?’, AidWatch, 1997, http://www.aidwatch.org.au/index.php?current=25&display=aw00234&display_item=1 [Accessed 5 January 2007]. 158 Will Marshall, ‘Australian firms plunder Papua New Guinea’, Mines & Communities, Website, 2003, http://www.minesandcommunits.org/Country/png3.htm [Accessed 25 December 2006]. 159 Marshall, op.cit., 160 Aviva Imhof, ‘The Big, Ugly Australian Goes to Ok Tedi’, Multinational Monitor, 17(3), March 1996, http://multinationalmonitor.org/hyper/mm0396.05.html [Accessed 20 April 2007].
84 addition, the Labor Government supported BHP for making profits by corporation tax reduction, and an exemption from regulations of environment and land access, the Environmental Protection Act of 1978 in order to avoid legal responsibility for the extraterritorial operations of corporation. 161 Moreover, BHP was sued in Australian and PNG courts in 1994 in terms of environmental damages in Ok Tedi. The justice held for the plaintiffs and subjected BHP to fines. BHP had obligations to commence compensation proceedings. On December 1995, PNG passed the Compensation Act that makes illegal for landowners affected by any resource project to pursue any future legal action for compensation in a foreign country. However, in response to this, Australia’s Foreign Minister, Evans criticised stating that it undermines trade and commercial agreements between Australia and PNG.162
Towards East Timor
HR in East Timor and trade with Indonesia were the area that Australia caused anguish and inconsistency. Haigh criticises the Australian governments which, he argues, were ‘craven and morally bankrupt’ in their dealings with Indonesia.163 Since Whitlam condoned Indonesia invading East Timor in 1975, successive governments demonstrated unfair and inconsistent approaches to HR in East Timor until the Howard Government changed its policy. While the East Timorese appealed to Australia for rescue from the Indonesian invasion in 1975, Whitlam chose to develop a relationship with Indonesia.164 In 1976, Whitlam asserted the relationship with Indonesia was imperative despite Indonesia’s invasion of Timor. 165 Like Whitlam, Fraser disregarded East Timor by excluding East Timorese refugees. Fraser presented his inconsistent HR approach to support Indonesia such as assisting military
161 David Hyndman, ‘Academic Responsibilities and Representation of the Ok Tedi Crisis in Postcolonial Papua New Guinea’, The Contemporary Pacific, 13(1), 2001, p.38; Manners, op.cit., p.135. 162 Imhof, op.cit., 163 Haigh, op.cit., p.2. 164 Haigh, op.cit., p.38. 165 Viviani 1999, cited Vromen and Gelber, op.cit., p.161.
85 aid and recognising the Indonesia’s illegal annexation of East Timor.166 Such approaches were inconsistent with claims to support HR in all its forms. Under the Hawke/Keating Government, economic structures and interests with Indonesia were the main factors that influenced a negative approach forwards HR in East Timor. During the election of 1983, the issue of the inalienable rights of the East Timorese to self-determination and independence was raised with the Labor Party. However, former Foreign Minister, Hayden, abandoned the issue in order to keep the constructive relationship with Indonesia.167 Hawke came to power in 1983, he quickly reaffirmed the Fraser Government’s official recognition of Indonesian sovereignty by giving de jure recognition in 1985.168 Foreign Minister Senator, Evans stated that Indonesian sovereignty over East Timor did not exclude recognising the rights of East Timorese. Nevertheless, he pushed to maintain and strengthen the good relationship with Indonesia.169 The Dili massacre in November 1991 was a tragic issue in East Timor. Indonesian soldiers attacked East Timorese youth at Dili’s Santa Cruz Ceremony. An estimated 271 people were recorded as deaths, with hundreds more injured and 255 subsequently disappearing people.170 The Dili massacre also led to many East Timorese refugees. Despite this, the Australian government refused to give protection visas for them, because the government emphasised the fact they had held Portuguese’s citizenship before 1974. However, when Portugal took its action to the International Court Justice (ICJ) regarding the 1989 Timor Gap Treaty, the Keating Government argued that Portugal had no claim on East Timor.171 Such contradictory logic is evidence of competing policy priorities. Australian aid to East Timor demonstrated Australia’s favour to Indonesia. Australian Aid has provided assistance to East Timor from the late
166 Oil issues in the Timor Sea is investigated in Chapter 3. 167 Cotton, op.cit., p.13. 168 DFAT, East Timor in Transition 1998-2000, An Australian Policy Challenge, Commonwealth of Australia, Canberra, 2001, pp.11-13. 169 Haigh, op.cit., p.59. 170 Vromen and Gelber, op.cit., p.161. 171 J. Skeers, ‘Australian government determined to deport East Timorese refugees’, World Socialist Web Site, 10 December 2002, http://www.wsws.org/articles/2002/dec2002/refu- d10.shtml [Accessed 5 June 2006]; Haigh, op.cit., p.66.
86 1970s for poverty alleviation with health and water supply, rural development, providing education and training. For 1978 to 1999, Australia gave A$66.1 million; 32.8 million as bilateral aid program, 12.8 million for humanitarian and emergency (not including $20 million for the UNAMET in 1998-1999) and 0.5 million for other AusAID (since 1977) funding mechanism. 172 However, Anderson argues that the aid program to East Timor during the Indonesia’s occupation was minimal. In particular, during the 1990s, the Australian aid was accused that it ‘reflected Jakarta’s preferences’ rather than meeting the demand of the East Timorese.173 In this regard, while Bishop Belo requested support for education and reconciliation programs, but Australian aid agencies instead responded more favourably to Jakarta’s recommendation for water supply, agriculture and veterinary assistance. The Australian Embassy in Jakarta forced Australian aid to respond sympathetically to Indonesia regarding East Timor.174 Moreover, when the Dili massacre occurred in 1991, Australia gave little aid to East Timor because of the relationship with Indonesia.175 Australia’s selective HR approaches and lacked of morality towards East Timor were derived from the motivation in terms of the pursuit of national interests. It is also perhaps related to Australia’s foreign policy on pragmatic in terms of oil issues of Timor Sea. Successive governments saw an importance with Indonesia as being given special favour in negotiations for oil issues in the Timor Gap. (The issues of maritime boundary in will be examined in Chapter 3.) So far, it was observed that under globalisation, successive governments recognised global pressure, taking positive actions for promoting international human rights by sign and ratify to reflect them into Australia. However, their
172 Australian Government AusAID, ‘Australian Aid to East Timor 1978-1999’, http://www.ausaid.gov.au/ [Accessed 3 June 2006]; Other AusAID Funding mechanisms involve Human Rights Fund, Asia Regional Fund, and Australia NGO Cooperation program: Between 1974-1977, the Australian Development Assistance Agency, 1977-1987, established in 1974, the Australian Development Assistance Bureau, and 1987-1995, the Australian International Development Assistance Bureau administrated aid programs as consultation with Foreign Affairs. (Australian Science at Work, ‘Australian Development Assistance Agency (1974 - 1977)’, http://www.austehc.unimelb.edu.au/asaw/biogs/A000810b.htm [Accessed 15 July 2006]). 173 Tim Anderson, ‘Aid, Trade and Oil; Australia’s Second Betrayal of East Timor’, Journal of Australian Political Economy, No.52, December, 2003, p.115. 174 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.1; Anderson, ‘Aid, Trade and Oil’, op.cit., p.114. 175 Anderson, ‘Aid, Trade and Oil’, op.cit., p.115; Firth, op.cit., p.62.
87 approaches indicated that Australia’s implementation of international human rights, were almost always selective in character, and directed towards enhancement of national interests, and thus leading to accusations of ‘inconsistency’. Australia’s pragmatic foreign policy applied to HR as well prioritising its national interests. In particular, since Australia embarked on economic globalisation, Australian HR approaches have need to fit within the precedence given to global trade. Australia’s HR approaches towards some states neglected HR concerns. It might be fair to say that the HR approaches of Australian governments from the 1970s to the 1990s, indicated Australia’s heavy distinction between internal and external policies, namely, Australia implemented HR for its citizens but often did not take positive action towards neighbouring countries if such action did not benefit national economic interests. There has also been increasing criticism that Australia’s foreign policy under the Howard Government focussed even more squarely on national interests.176 The HR policies of the Howard Governments have demonstrated selective approaches to the UN human rights treaties. There is a need to scrutinise the processes and policies of Liberal – Coalition Governments after 1996 with regards HR approaches and globalisation. What follows is a review of the extent to which Howard’s foreign policy with regards to HR has been influenced by response to pressures of globalisation, including economic globalisation. It is to this regime that it now turns.
2) The Howard Government’s Human Rights and Globalisation from 1996
Under the Howard Government, the importance of HR seems to have diminished in public importance. The Labour Party’s spokesman, Laurie Brereton argues that the issue of human rights under the Howard regime has been very significantly downgraded in Australia’s foreign policy priorities.177
176 Vromen and Gelber, op.cit., p.150. 177 Laurie Brereton, ‘Foreign Policy under the Coalition: Confused Not Confident, Often Just Plain Dumb’, Speech to Australian Institute of International Affairs, Queensland, 22 February 1997, cited Burke, In fear of security, op.cit., p.194.
88 The Howard Government is accused of changing and damaging Australia’s contribution to international human rights that the Labor Party had nurtured. In this vein, despite Australia being a member of the UN’s Commission on Sustainable Development, and in agreement with the Convention on Biological Diversity since 1992 and the Framework Convention on Climate Change since 1993, the Howard Government, refused to ratify the 1997 Kyoto Protocol on greenhouse gases.178 In 2000, the Howard Government announced Australia’s refusal to ratify a UN protocol to the Convention on the elimination of all forms of Discrimination Against Women (CEDAW), which Australia had ratified in 1983.179 The Howard Government announced that Australia would take a more selective approach to report to the UN on policy development, claiming the UN system needs more radical reform an effective human rights instrument in global era.180 It means that Australia will only work with the UN with only selected covenants. In 2004, Australia announced its responsibility to monitor compliance of the human rights treaties in the following bodies:181 International Covenant on Civil and Political Rights (ICCPR),
International Covenant on Economic, Social and Cultural Rights (ICESCR),
International Convention on the Elimination of All Forms of Racial Discrimination (CERD),
Committee on the Elimination of All forms of Discrimination Against Women (CEDAW),
Committee against Torture,
Committee on the Rights of the Child, and
Committee on the Protection of All Migrant Workers Convention.
178 Australian Government Department of the Environment and Water Resource, Australian Greenhouse Office, ‘Kyoto Protocol’, http://www.greenhouse.gov.au/international/kyoto/ [Accessed 23 April 2007]. 179 DFAT, Human Rights Manual, op.cit., p.13. 180 DFAT, Human Rights Manual, op.cit., p.2; Firth, op.cit., p.256. 181 DFAT, Human Rights Manual, op.cit., p.6.
89 Australia under the Howard Government has indicated unwillingness to being a full international citizen, in contrast with the Labor Party. Rather the Howard Government has rejected the view that there exists a hierarchy or priority with respect to those rights embodied in the UDHR.182 Australia under the Howard Government has taken a different stance with regards to HR approach as the Labor Party asserted to human rights promotion, transcending national borders. Having noted, while successive governments’ foreign policy with regards to HR indicated the influence of international HR on Australia’s domestic legislation and even about their usefulness, the Howard government has presented clearly different approaches. The Howard Government reduced the budgets of Aboriginal and Torres Strait Islander Commission (ATSIC), reduced funding for the Australian Human Rights and Equal Opportunity Commission (HREOC), and cut the numbers of the DFAT personnel working on human rights. Australia was under pressure to reduce taxes and social service such as health and education. In 1996, AU$400 million was reduced from state expenditure.183 Moreover, the Howard Government restricted the rights of the Aboriginal citizens that had been recognised as the Mabo decision in 1992. 184 Given the Native Title Amendment Act 1998 was removed, the Committee on the Elimination of Racial Discrimination reproached the Howard Government’s decision ignored HR against racial discrimination. Howard also refused to apologise for the stolen generations of indigenous people and their low standard of living in community.185 The Howard Government has presented other pragmatic stances. When John Howard came into power, he defined the foreign policy of his government as ‘practical diplomacy’, meaning that pragmatism available to Australia’s
182 Vromen and Gelber, op.cit., p.150 ; DFAT, Human Rights Manual, op.cit., p.13; Paragraph 1 of the Vienna Declarations states: The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms are beyond doubt. 183 Firth, op.cit., pp.72-73, p.253. 184 Haigh, op.cit., pp72-73. 185 Vromen and Gelber, op.cit., 168.
90 domestic politics and international affairs for Australia’s national interests,186 with the term of ‘an Australian way’. 187 The Australian way of Howard is described as being “self-interest first and suspicious of the claims of others”.188 The foreign policy of the Howard Government, however, has been criticised as ‘narrow interpretation’189 or ‘self-worth based on hubris’ (‘self- interested’)190 for pursuing its national economic prosperity and not reflecting the HR principles of tolerance, social justice and equity. Burke asserts, “One element of his complacency was the largely self-indulgent realism which the Howard Government saw itself bringing to international policy”.191 Singer and Gregg remark, that “a disturbing example of Australia’s current willingness to be considered a laggard in order to advance what is sees as its national interests”. 192 There is a critique that the Howard Government’s selective approaches and downgrading of HR issues have been done on the basis of available for Australia.193 Vromen and Gelber emphasised the change, noting that “Australia has been increasingly isolationist based on narrowly defined perceptions of ‘national interests’”.194
Human Rights and globalisation under the Howard Government
Globalisation has dominated decision making with regards to the HR issues. An approach of the Howard Government towards refugees has been criticised as being a breach of international obligations under the international human rights law. Refugee policy is not a formal part of foreign policy because it is the responsibility of the Department of Immigration and Multicultural and
186 Galligan, Roberts, and Trifiletti, op.cit., pp.145-146. 187 Vromen and Gelber, op.cit., p.150; Howard, 2000, cited J V D’Cruz and William Steele, Australia’s ambivalence towards Asia, Monash University Press, Victoria, 2003, p.44. 188 Burke, In fear of security, op.cit., p.195; Singer and Gregg, op.cit., p.24. 189 Anthony Burke, ‘Australia’s Asian crisis: National identity develops is an organic way over time’, Australian Humanities Review, http://www.lib.latrobe.edu/AHR/archieve/Issue-June- 2001/burke.html [Accessed 17 July 2006]; Vromen and Gelber, op.cit., p.170. 190 Wesley 2002, cited Vromen and Gelber, op.cit., p.159; Singer and Gregg, op.cit., p.13. 191 Burke, ‘Australia’s Asian crisis’, op.cit. 192 Singer and Gregg, op.cit., pp.49-51. 193 Vromen and Gelber, op.cit.,p.170. 194 Vromen and Gelber, op.cit.,p.150.
91 Indigenous Affairs (DIMIA). However, the treatment of refugees affects Australia’s international standing and its relationship with other countries.195 Australia’s management of the asylum seekers and their mandatory detention is very controversial. It has been criticised as being humiliating and denying of their civil rights since the current government detained Cambodian refugees in the Port Hedland in 1997.196 The Howard Government asserts that the detention of unlawful non-citizens in mainland Australia is legal under the Migration Act 1958, sections 88 and 89.197 DIMIA also states that the purpose of Australia’s administrative detention policies is to hold people who have arrived without authority. On the other hand, in April 1995, the United Nations High Commissioner Refugees (UDHRC) found that Australia’s detention policy breached Article 9 (1) of the ICCPR, regulating the prohibition of arbitrary detention of people and the 1951 Convention and/or its 1967 protocol.198 While the UN Human Rights Committee advised Australia to meet its obligations under international law in 1997, Howard formally rejected it and decided to ignore the recommendations based on the reason of the importance of state sovereignty. The Tampa affair on 26 August 2001 raised serious questions both inside and outside Australia, particularly in the light of the perspective of HR and state sovereignty. By then, Australia’s management of refugees was called ‘the Pacific Solution’ which meant that the refugees were refused entry into Australia and that over 400 asylum seekers were taken to Nauru in the Pacific. While Article 14 of the 1948 UDHR points out that Australia’s policy is not
195 Firth, op.cit., p.556; Since the 1980s, Australia’s new direction in foreign economic policy under the Departments of Trade and Defence, required an ‘all hands to the pump’ effort by all relevant departs such as exporting defence material or shifting the skills content of immigration (Viviani, ‘The Bureaucratic Context’, op.cit., p.49). 196 Firth, op.cit., p.253. 197 Senator Amanda Vanstone, April, 2003, http://www.minister.immi.gov.au [Accessed 6 April 2004] ; The Migration Act 1958 amended to permit detention without warrant and custody. The High Court confirmed the legality, arguing that this was not punitive (Gianni Zappala and Stephen Castles, ‘Citizenship and immigration in Australia; T. Alexander, Douglas Klusmey (eds), From Migrants to Citizens : Membership in a Changing World, Brokkings Institution Press, Washington, 2000, p. 69). 198 M. Crock, and B. Saul, Future Seekers: Refugees and the Law in Australia, The Federation Press, and Leichhardt, 2002, pp.76-77;These treatments claims that refugee people can invoke their right to have their claim to protection. Article 9 (1) of the ICCPR states “Everyone has the right to liberty and security of person. No One shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.
92 obliged to international HR, stating that, “everyone has the right to seek and to enjoy in other countries asylum from persecution”, the government justified that this management was reasonable by accusing the asylum seekers of being ‘possible terrorists’, ‘queue jumpers’ or ‘illegal immigrants’. John Howard has an advantage. Despite many international criticisms, a large proportion of Australian citizens favoured the approach of the Howard Government. In fact, a Newspoll in 2001 indicated 50 per cent supported the Pacific Solution while 38 per cent claimed that some refugees should be allowed to enter Australia depending on their situation.199 The approach of the Howard Government has been promoted as pragmatic and realistic, rather more than previous governments. For example, Foreign Minister, Downer has highlighted the Howard Government as ‘realists’, because it emphasised state sovereignty and national interests.200 Howard has actually stressed the importance to protect Australia’s sovereignty and emphasise Australia’s nationalism now more than ever. This issue of what Howard did about refugee policy offers evidence of the conflicts over HR protections under globalisation. The approaches of Howard Government indicate Australia’s choice for the protection only its citizens from the unstable international tension of global wave. However it presents a distinction between citizen and non-citizen. This has resulted in breaching of HR under the UDHR’s requirement. As was shown in Chapter 1, global intentions require states to have rules more strictly to distinguish between internal and external, namely, governments protect their citizens but do not protect non-citizens. Australia indeed has appeared to concentrate its efforts on protecting Australian citizens’ HR, rather than the obligations of international HR. Australia’s refugee policy is a good example of how the state has faced global tensions that might arguably cause instability.
199 Newspoll 2001, cited Vromen and Gelber, op.cit., p.165. 200 Downer 1999 cited Galligan, Roberts and Trifiletti, op.cit., p.145.
93 Human Rights and trade under the Howard Government
The Howard Government has been ever more efficient in implementing its neo-liberal policies with regards to the issues of HR. Howard’s policy is ‘all opportunities for gains in market access for Australian business and to promote Australia’s growth through trade and investment’. 201 Two Australian Government Department Foreign Affairs and Trade (DFAT), White Papers which are In the National Interest (1997) and Advancing the National Interests (2003) have documented Australia’s position in an overwhelmingly interconnected economic globalisation in the confines of the international political economy. 202 The Treasurer, Peter Costello under the Howard Government has asserted that Australia has an open trading economy with the WTO which will be of benefit of all countries.203 The formulation of HR and global trade has further confirmed within the Howard Government. HR approach in Australia under the Howard Government is clearly outlined in the 1997 White Paper, in which Australia’s HR stances link to trade through development programs. It states: Australia’s foreign policy aims to improve the human rights situation directly, by formulating development cooperation programs, assisting in establishing national human rights machinery, … 204
Hanson et al remark that Australia under the Howard Government conducts “its programmatic approach towards level for the clear codification of, and compliance with international human rights standards”. 205 The White Paper in 1997 emphasised that Australia’s HR policy should have a practical difference. 206 The White Paper in 2002 also outlined that HR are an inseparable part of Australia’s overall foreign policy approach.207
201 Howard, 1996, cited Wiseman, op.cit., p.48. 202 DFAT, In the National interests, 1997, op.cit.,; DFAT, Advancing National Interest, Commonwealth of Australia, Canberra, 2003, pp.1-2. 203 Peter Costello, ‘Address Australian American Leadership Dialogue Forum Gala dinner’ Art Gallery of New South Wales The Domain, Sydney, 20 August 2005, http://www.treasurer.gov.au/tsr/content/speeches/2005/011.asp [Accessed 4 April 2006]. 204 DFAT, 1997, cited Hanson, op.cit., p.81. 205 Dunne, Hill and Hanson, op.cit., pp.81-82. . 206 DFAT, In the National Interests, op.cit., p.14. 207 DFAT, ‘Australia – Promoting Human Rights’, http://www.dfat.gov.au [Accessed 11
94 Having said that, it is also important to note that the Howard government has a different economic approach from the Labor Party. The Howard Government has emphasised bilateral relationships for trade, rather than multilateral ones.208 Howard upholds bilateralism as inevitable for successful pragmatism. Bisley’s study shows that Howard’s preferential bilateralism reveals Australia’s aim toward more interest-driven trade policy. The Howard Government believes that bilateral trade gives wider and more open market access. On the other hand a critical perspective of the trade policy under the Howard Government affirms that it is conducted on a narrow instrumental basis.209 For example, Bisley asserts that the Howard Government’s negative impacts, self-interested approach and self-centred attitude to regional co- operative efforts in terms of its trade policy, derived from giving priority to national interests rather than process.210 Importantly, this policy has been reflected in HR concerns as well. Since the Labor Party in the early 1990s started bilateral human rights dialogues, Howard has expanded bilateral representations to HR dialogues more widely. Howard recognised the Republic of China again in 1997, started the human rights dialogues with Vietnam in 2002 and Iran in 2002, asserting that the bilateral dialogue helps those countries for the protection of HR, especially civil and political rights. 211 While China’s social, economic and political rights have progressed since the Tiananmen HR violation in 1989, the human rights violation by the Chinese Communist Party has been widespread and well documented. Like other western democratic states, Australia supported the annual draft resolution
October 2004]. 208 Firth, op.cit., p.119; DAFT, In the National interests, op.cit.,; The National Interest (1997) addresses : In handling bilateral relationships, the Government will adopt an integrated approach taking into account the totality of Australian interests. In some instances these interests will be confined mainly to trade and investment; in the more substantial bilateral relationships, the Government will implement comprehensive strategies, which integrated Australia’s wider network of contracts in such areas as educations, tourism and cultural exchanges. A comprehensive approach to bilateral relationships also involves working closely with the Australian business community to expand market access and other opportunities for trade and investment. 209 Nick Bisley, ‘Asia-Pacific regionalism and preferential trade agreements: the Australian case’, International Relations of the Asia-Pacific, Volume 4, 2000, pp.245-258. 210 Bisley, op.cit., pp.245-258. 211 DFAT, Human Rights Manual, op.cit., p.5.
95 at the UN Commission on HR regarding China’s HR abuse. However, Australia withdrew from the draft resolution arguing that that this resolution would not achieve anything. It resulted in renewal of HR dialogue in both Australia and China.212 $50 million of Australia’s aid goes to China a year.213 Australia has been hardly outspoken with regard HR in China. Both Australia and China promote the concept of ‘dialogue’, human rights issues are not central to their relationship.214 The UN Commission of Human Rights has criticised Australia’s conflicting approaches between HR considerations and economic interests in its relations with China. Australia has been questioned about civil and political rights in terms of increasing Chinese economic power.215 Australia supported China to join the WTO, and also signed a trade agreement with China in order to gain better access to the Chinese market. China is a favourable nation status as a trading partner of Australia. In 2001, Australia invested $1,999 billion in China while China invested in Australia $3.4 billion. 216 By 2004, China became Australia’s third largest trading partner.217 In other words, Australia’s HR approach towards China has been strategic. It has presented that primarily concerned with trade improvement rather than improvement of HR. Human rights dialogue is utilised as a tool to actively construct better economic relationships. Apart from human rights dialogue, trade has also influenced aid programs more than previously. Aid Programs are a preoccupation of foreign policy. This is because aid offers a strategic advantage for Australia’s favourable deals. Under the Howard Government, Australia’s aid is called as AusAID. Australia’s aid presents advancing Australia’s interests.218 AusAID (Australian Agency for International Development) is an agency for International Development, and belongs to the Department of Foreign Affairs and Trade (DFAT) starting to officially operate as a separate foreign aid unit in 1995.219
212 Caroline Fleay, ‘Australian Foreign Policy, Human Rights in China and the Spiral Model’, Australian Journal of Political Science, 41(1), March, p.79. 213 Firth, op.cit., p.277. 214 McDougall, op.cit., p.209. 215 Firth, op.cit., p.263. 216 Downer, ‘Australia and Recognition of the People’s Republic of China: 1949-1972’, op.cit., 217 Firth, op.cit., p.263. 218 Singer and Gregg, op.cit., p.24. 219 Australian Government AusAID,
96 AusAID addresses its definition of “promoting democratic and accountable government and effective public administrations”,220 and the linkage between governance, poverty reduction, sustainable development, and promotion and protection of HR in Australia’s partner countries.221 This definition is based on the idea that economic, social, and cultural rights that are equally associated with civil and political rights covering governance, globalisation, human capital, security and sustainable resource management.222 However, Australia’s aid has continued to be criticised. While the White Paper claims that Australia is recognised for its role in reducing poverty, this is not reflected in its financial aid contributions. At a UN Summit in 2000, the UN claimed that it is necessary 0.5 per cent of GDP needs for the Millennium Development Goals for eradicating poverty and hunger, achieving universal primary education, promoting gender, reducing child mortality, and improving maternal health by 2015 for the developed nations.223 Australia’s commitment during the Howard Government is shown below:
Table 2.3: Australian contribution to OECD aid program.224
1984 1995 1999 2000 2001 2002 2003 2004 2005 Fraser Labor Howard 0.46% 0.32% 0.26% 0.27% 0.25% 0.26% 0.25% 0.26%
Australia’s average in the latest year is 0.25 per cent and has been significantly under-performing despite Australia’s economic expansion over http://www.ausaid.gov.au.hottopics/easttimor/acieve.cfm [Accessed 20 June 2006]. 220 Singer and Gregg, op.cit., p.71. 221 DFAT, ‘Human Rights Manual’, op.cit., p.5. 222 E.A., Reid, ‘Health, human rights and Australia’s foreign policies’, The Medical Journal of Australia, 180(4), 2004, pp.163-165. 223 Singer and Gregg, op.cit., pp.19-22 ; Firth, op.cit., p.273. There are 15 targets to achieve such as : - Eradicate extreme poverty and hunger. - Provide universal primary education. - Promote gender equality and empower women - Reduce child mortality. - Improve maternal health. - Combat HIV/AIDS, malaria and other diseases. - Ensure environmental sustainability - Develop global partners for development. 224 Source: Development Cooperation Report 1982-2004 cited Singer and Gregg, op.cit., p.22; AusAID Website, cited Stephen Fitzgerald, ‘Different views’: Foreign Policy choices for Australia in Asia, Marsh (eds), op.cit., p.158.
97 thirteen years from 1991. This is a quite low figure and Australia was ranked 15th out of the 22 OECD donor countries in 2004. 225 According to Singer and Gregg, in contrast, the Netherlands, Sweden, Norway and Canada have made fairly concerted efforts to the direct aid to rights-protective regimes over the past two decades. 226 Australia has claimed that Australia’s aid budget has placed above the “weighted average” (0.24 per cent) of Development Assistance Committee (DAC) average.227 However, Australia claimed even this weighted calculations shows only 0.01 per cent above.228 More than the Labor party’s role, aid policy under the Howard Government has been sharpened and influenced by trade policy. Singer and Gregg, again explore Australia’s aid under the Howard Government has increased since 1996 to the Middle East by 199.8 per cent. By contrast, Australia’s aid has not gone to the neediest countries where there is no expectation for trade. The OECD noted that only 17 per cent of Australia’s gross bilateral ODA went to the very poorest countries and 26 per cent went to other low-income countries in 2002. During 2004-2005, towards sub-Saharan Africa (where most of the poorest countries in the world were), only 3 per cent of Australia’s total aid budget went, and this has declined sharply of 49.3 per cent. 229 Moreover, Australia’s aid recorded only 7 per cent for real humanitarian needs such refugee and emergency relief in a typical l year, meaning the remaining 93 per cent is for long-term development.230 Australia’s aid is always associated with economical returns and primarily humanitarian need is not reflected. AusAid presents Australia’s strategic foreign policy. According to Firth, the top five recipients of AusAID in 2004 were Australia’s regional countries
225 OECD, ‘Australia (2004), DAC review: Main Findings and Recommendations’, http://www.oecd.org [Accessed 8 March 2006]. 226 Donnelly, op.cit., p.165. 227 See Table 2.3. DAC average in 1998, ODA/GNP ratio stands at 0.24%; Australia’s budget has been above than DAC weighted average since 1972: Budget, ‘Australia’s Overseas Aid Program 2000-01’, http://www.budget.gov.au/2000-01/minist/html/ausaid-09.html [Accessed 8 March 2006] ; Australia belongs to DAC. DAC is organised by 22 rich industrial country: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal Spain, Sweden, Switzerland, the United Kingdom and the US (cited OECD, http://www.oecd.org). 228 Singer and Gregg, op.cit., p.23. 229 Singer and Gregg, op.cit., p.25. 230 Firth, op.cit., p.279.
98 such as Papua New Guinea, Solomon Islands, Indonesia, Vietnam and the Philippines. Eighty six per cent of total aid goes to Southeast Asian countries. Aid increased by one-third, to PNG, and double to the South Pacific.231 AusAID does not go to states where aid is more needed such as India, which has 5000 times the population of the Solomon Islands. Only 4.4 per cent of AusAID went to Africa, and 5.7 per cent to South Asia (India, Bangladesh, Sri Lanka and Pakistan).232 Firth notes out that this fact reflects Australia’s political motivation and indicates Australia’s geographical concerns with security after the Bali bombings, economic issues in South-East Asia and trade opportunities. 233 Thus, foreign aid involves both economic and security assistance. Bauer calls it ‘economic rent’. 234 Moreover, Hughes remarks, ‘yesterday’s developing countries in East Asia have become trading partners”.235 AusAID has not worked as well for development in these areas as Australia claims. Hughes’s study demonstrates that Australia’s aid creates adverse results. Furthermore, Firth asserts that “Neo-liberal economics is part of Australia’s aid message’. 236 A scholar at Sydney University, Australia, Anderson points out that Australia’s aid to support corporation presents Australia’s neo-liberal economic views.237 This is because aid money goes to Australian suppliers or contractors. AidWatch criticises this role as ‘boomerang aid’, meaning that return goes to the Australian consultants companies and public servants who serve AusAID contracts. 238 While AusAID has implemented competitive tendering and contracting procedure with ethics, fair value dealing, accountability and transparency, the Howard Government usually contracts to Australian and New Zealand companies, organizations or institutions which are selected from a competitive
231 Firth, op. cit., p.276. 232 ibid. 233 ibid. 234 Peter Bauer cited Hughes, op.cit., 235 Hughes, op.cit., 236 Firth, op.cit., p.287. 237 Tim Anderson, ‘The Howard Government, Australian aid and the consequences’, Symposium: A Decade of Howard Government, 23 February 2006, Australian Review of Public Affairs, http://www.australianreview.net/digest/2006/02/anderson.html [Accessed 15 July 2006]. 238 Firth, op.cit., p.281 and p.287; Australia has promoted neo-liberal ideology since 1993.
99 tender process. 239 According to Anderson’s research, AusAID’s budget in 2003-2004 shows that ACIL, AusAID’s Australian Managing Contractor for the Program Stream had 31 contracts worth $323 million, and SAGRIC, Adelaide-based International Pty Ltd had 22 contracts worth $297 million.240 Furthermore, there has been a critique that AusAID has not met the concerns over health and education in rural areas, where these services are really needed.241 In this regard, Australia, as the biggest donor, has pressured to the PNG Government to adopt neo-liberal ideology that encourages more free market, increasing private sector roles and reducing public social welfare.242 The PNG Government is thus not providing funds to those basic needs in response to Australia’s neo-liberal trade policy conditions. Hughes reports that the economy has deteriorated and there have been bare nutrition, no schools or health services, so that malaria, tuberculosis and HIV/AIDs have all increased in incidence and spread in PNG. It has been much the same in the Solomon Islands and Vanuatu.243 Australia’s aid is aimed at dealing with investment rather than assisting with, or confronting basic problems. Australia is also PNG’s largest direct investor, accounting for two-thirds equity holding in PNG. PNG is also Australia’s 11th largest investor, accounting for approximately $2.3 billion invested until 1998. The balance of trade between Australia and PNG is overwhelmingly in Australia’s favour.244 Other donor region states have also revealed an adverse impact on development. According to Firth’s research, regarding Australia’s aid to Solomon Island and Nauru, Australia’s aid was disadvantageous to the prospects of development, following Australia’s conditional aid program.245 The Government has responded to that criticism by giving weight to the effects of globalisation, stating that globalisation has made millions of people
239 Anderson, ‘The Howard Government, Australian aid and the consequences’, op.cit.,; Australian Government AusAID, ‘Corporate management and accountability’, http://www.ausaid.gov.au/publications/pdf/anrep99_00sect3.pdf, [Accessed 17 May 2007]. 240 Anderson, ‘The Howard Government, Australian aid and the consequences’, op.cit.,; 241 Hughes, op.cit., 242 Firth, op.cit., p.281 and p.287. 243 Hughes, op.cit., 244 Democratic Socialist Party, ‘The role of Australian imperialism in the Asia-Pacific region’, http://www.dsp.org.au/links/back/issue18/dsp.htm. [Accessed 15 February 2007]. 245 Firth, op.cit., pp.283-285.
100 poor as globalisation demonstrates free movement of people, goods, capital and ideas. 246 Australia under the Howard government has been also compromised by globalisation.
Human Rights approach towards East Timor
In the early stages of the Howard Government, Australia inherited the Labor’s policy towards Indonesia, in which a good economic relationship took precedence over human rights in East Timor. Howard indicated that East Timor would have a high degree of autonomy as a part of Indonesia’s jurisdiction.247 Like Fraser in 1975 and Keating in 1991, Howard also refused to accept 1500 East Timorese as asylum seekers in 1997 because the East Timorese were classified as Portuguese citizens.248 Surprisingly, however, Australia under the Howard Governments showed a dramatic significant shift in Australian human rights policy towards East Timor for establishment of East Timor’s self-independence from Indonesia. Howard takes pride in the event of Australia-led humanitarian intervention for peacekeeping operations from 1999 until 2002 in East Timor. A shift in the terms of the debate over Australia’s responsibility for HR in East Timor increased through Australian newspapers and media. The UN and some HR and relief organizations explored Indonesia’s HR violations. The Dili massacre in 1991 involved US journalists and Australian human rights activists, and their voice about HR regime increasingly impacted all over the world.249 Asian financial crisis in 1997 damaged Indonesia and the protest movements against President, Suharto increased. This aftermath by the protest movement brought about the most serious political and humanitarian crisis in East Timor since the Indonesia’s invasion in 1975.250 A clamour of domestic and international voice for independence of East Timor put pressure on the Australian government. Many arguments claimed
246 Firth, op.cit, p.289. 247 Haigh, op.cit., p.73. 248 McDougall, op.cit., p.217. 249 Cotton, op.cit., p.15. 250 Burke, ‘Australia’s Asian crisis’, op.cit.,
101 that Australia should take action in support of the East Timorese from the inhumane treatments being meted by Indonesia. Moreover, the demise of the Suharto’s regime in 1998 was regarded as a good opportunity for Australia to rescue East Timor. 251 Foreign Minister, Alexander Downer provided the initiative for East Timor’s self-determination, and Australia officially announced a shift in its policy for rescue of the East Timorese in January 1999.252 A referendum for independence of East Timor showed 78.5 per cent consent for independence.253 The UN established the United Nations Mission in East Timor (UNAMET) in June 1999 for making sure of self-determination in East Timor.254 On 4 September 1999, the UN established the International Force East Timor for Peace Enforcement (INTERFET) ensuring peace enforcement until East Timor was officially independent in 2002, 255 and eventually 9000 troops from 18 countries were deployed.256 In October 1999, the Indonesian government officially acknowledged the INTERFET. The East Timor under the UNITAET in 1999 was terrible situation in terms of the formidable destruction of property and enormous displacement by the Indonesian Armed Forces. Not only had 70 per cent of physical infrastructure been destroyed, but also the East Timorese bureaucracy was wiped out.257 Approximately 1000 people died and 250,000 refugees escaped to West Timor. 258 Rebuilding of basic economic development was an immediate task in East Timor.259
251 Kofi Annan became the UN Secretary-General in 1997, he was initiative to bring the problem of East Timor (DFAT, East Timor In Transition 1998-2000, op.cit., p.4.) 252 DFAT, East Timor in Transition 1998-2000, op.cit., p.34. 253 Burchill, 2000 cited Vromen and Gelber, op.cit., p.162. 254 The UN concerned East Timor over 40 years (DFAT, op.cit., p.1). 255 The UN General Assembly Resolution 2625 (XXV) states that ; “Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purpose of the United Nations. 256 Vromen and Gelber , op. cit., p.162. 257 James J. Fox, ‘East Timor: The Task of Creating a New Nation’, in Donald R. Rothwell and Martin Tsamenyi (eds), The Maritime Dimensions of Independent East Timor, The University of Wollongong, Wollongong, NSW, 2000, p.35. 258 Natalie Bugalski, ‘Beneath the Sea: Determining a maritime boundary between Australia and East Timor’, The Alternative Law Journal, 29(6), December 2004, p.289. 259 Fox, op.cit., p.35.
102 With the legal justification from the UN, Australia played a central role in the INTERFET, providing the leadership, the infrastructure, the biggest troop deployment and financial aid.260 Australia supplied major support services such as UNAMET’s helicopter capability, aircraft handling and storage facilities.261 The Australia’s UN Peace Keeping Force (PKF) served East Timor as a part of the UN Mission in East Timor. The role of the Australian UN PKF was generally well regarded as being friendliness, and its professionalism.262 Australia supported a wide range of aids to East Timor aimed at reducing poverty and building East Timor’s capacity in good governance, education, health, water supply, sanitation and rural development.263 AusAID contributed US$20 million to East Timor during September 1999 to June 2000. Half of the aid money went to repatriate refugees and the United Nation Human Commissioner for Refugee (UNHCR).264 Australia has also contributed over A$400 million in ODA to East Timor since 1999.265 Australia contributed about $46 million of development assistance resource channelled through the Indonesian Government and NGOs about $1 billion on the INTERFET and the UN PKF in East Timor since 1999. 266 The Government contributed total $81 million to East Timor as development assistance, comprising:267
260 Nicholas J. Wheeler and Tim Dunne, ‘East Timor and the new humanitarian intervention’, International Affairs, 77(4), 2001, p.806. 261 DFAT, East Timor in Transition 1998-2000, op.cit., p.94 ; Australia also contributed;31- four-wheel drive vehicles, 500 personal medical kits, 9 start up kits for a basic vaccinations, 600 camping kits, 6000 ration packs, 50 air-conditioners, electrical consumables for the UNAMET facilities, office accommodation for the UN and International Organization for Migration in Darwin, and extensive induction and training facilities for the UN volunteers Civilian Police Component, military liaison officers in Darwin. 262 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, 3(8), 2002, p.6; On the other hand, Australian soldiers were accused of their sexually harassing of East Timorese women by raping (Australian, 17 January 2000 cited Jan Jindy Pettman, ‘Gender and World Politics’, in M. Hanson and W. Tow, (eds), op.cit., p.170. 263 Auditor-General Audit Report No.20 2003-04 Performance Audit, ‘Aid to East Timor’, Australian National Audit Office, http://www.anao.gov.au/Wbsite.nsf/Publicatons [Accessed 23 June 2006] ; The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.2. 264 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.1. 265 Australian Government AusAID, ‘East Timor’, http://www.ausaid.gov.au/ [Accessed 3 July 2006]. 266 DFAT, East Timor in Transition 1998-2000, op.cit., v-vii and p.13; The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.1; This US$ 1 billion is supposed to include salary and equipment costs that would have been paid even if the Australia forces had not gone to East Timor. 267 DFAT, East Timor in Transition 1998-2000, op.cit., p.171; AusAID, Interim Country
103
$37 million in humanitarian assistance (Repatriation and resettlement, support of transport and food, restoration of health, water and sanitation service and education service) $31 million in support for the UN, World Bank and Asian Development Bank Trust Funds for East Timor and associated activities $11 million in other support for the UNAMET $ 2 million in bilateral activities.
During the transition time, AusAID joined with other aid organizations such as JICA of Japanese agency, and USAID of the US agency, as well as Portuguese, Canadian, Irish and European Union agencies. 268 During the transition periods, some credited AusAID as being helpful and relatively prompt in processing a wide range of projects and flexibility.269 In fact, the Howard government emphasised Australia’s significant role, stating that Australia was better off not only for East Timor’s where, its transition toward independence but also for Indonesia at the beginning of democratic transition. 270 The Howard Government also emphasised Australia’s justifiable humanitarian intervention that was implement with the resolution of the UN Security Council in comparison with the case of Kosovo in the same year.271 Australia’s responses to East Timor reaction were different from the successive western interventions that had caused the brutal repression of civilians, such as the Kosovar Albanians. Moreover, Australia was concerned about a problem condition ‘Balkanisation of East Timor’ that might cause a great numbers of refugees. 272 Moreover, Howard emphasised Australia’s regional ‘bridging power’. 273 Australia found that Indonesia and Portugal who
Program Strategy for East Timor, January, 2001, cited Auditor-General Audit Report, op.cit., 268 Anderson, ‘Aid, Trade and Oil’, op.cit., p.115; The Auditor-General Audit Report, op.cit., 269 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.4; Budget, ‘Minister’s Foreword 2000-01’, http://www.budget.gov.au/2000-01/minister/html/ausaid-08.html [Accessed 5 November 2005]. 270 DFAT, East Timor in Transition 1998-2000, op.cit., p.1. 271 Wheeler and Dunne, op.cit., p.807; Dunn, Hill and Hanson, op.cit., p.94. 272 Hugh, op.cit., p.77. 273 Wheeler and Dunne, op.cit., p.807.
104 conquered East Timor, did not demonstrate their positive response for East Timor’s self-interests, and they failed to bridge the positions of the parties.274 Unlike the case of Kosovo or Iraq, international community credited to breach national sovereignty in the case of East Timor.275 Within Australia, the media and Opposition showed relatively well-disposed views with regards to the humanitarian intervention.276 Hanson credited the Australian intervention with saving lives, stating that the Howard Government demonstrated that Australia had no hesitation to jeopardise its relationship with Indonesia and withstand criticisms from other Asian countries regarding upholding HR over East Timor.277 However, Portugal, which had opposed Australia, in terms of the Timor Gap issues since 1972, argued that peacekeeping was expected earlier. 278 Moreover, it raised a series of important question regarding Australia’s recognition and the direction of HR in its region and the need for to be an agent of humanitarianism. Critics pointed out that Australia’s policy was criticised that the purpose of Australia’s intervention was more evidently for its national interests as economic prosperity.279 The Howard Government’s approaches were questioned in terms of the extent to which trade policy rather than HR, had determined approaches towards East Timor. This is because the Howard Government had centred on the importance of economic priority by manipulating HR issues in East Timor. Critics continue that Indonesia’s importance for Australia appeared to have diminished after the Asian financial crisis in 1997 and the demise of the Suharto regime. In particular, Asian countries such as Indonesia, Malaysia, Thailand and Korea denounced Australia’s method, arguing that its motivation for helping East Timor was seen to come from economic opportunities available in the Timor oil reserves.
274 James Cotton, ‘‘Peacekeeping’ in East Timor: An Australian Policy Departure’, Australian Journal of International Affairs, 53(3), 1999, p.239. 275 Burchill, ‘East Timor: Towards Rwanda’, op.cit., 276 DFAT, East Timor in Transition 1998-200, op.cit., p.34. 277 Hanson, op.cit., p.86. 278 Cotton, 2000, cited Vromen and Gelber, op.cit., p.162. 279 ibid.
105 Moreover, the strong emphasis in Australia’s aid, given to security and policing in East Timor has been criticised.280 Australia has become the largest donor country for East Timor since 1999. During the transition period of 1999- 2002, the government stated that Australia would continue to support East Timorese to build the foundations for a democratic and independent nation.281 In this respect in is worth noting that Australian aid involves both economic and security assistance. However, the aid goes to mainly (90 per cent) to policing and security. As can be seen in Table 2.4 Australia is more concerned with security and policing rather than the social or citizenship needs of East Timorese which require economic aid.
Table 2.4: Comparison of AusAID and policing and security (US$m): 282
Transition periods After independence 1999-2000 2000-01 2001-02 2002-03* 2003-04* Security Assistance 607.5 815.2 664.9 115.6 115.6 AusAID 81.0 40.5 39.5 38.9 34.7 Policing Assistance 121.1 20.5 16.9 22 19.7 Portion of Security and Policing 90% 95% 95% 78% 80%
The Table indicates a high portion of security and policing during the transition period. Certainly, security and policing were necessary during the transition era because of East Timor’s unstable condition after the referendum in 1999 until East Timor became a state in 2002. However, after East Timor’s independence, the weight of security and policing is shown to have remained high at 80 percent of Aid. Since 1976, Australia has focused on security policy for maintaining stability and cooperation with the Australia’s regional neighbours.283 Foreign Minister, Downer expressed Australia’s approach as a ‘hands-on’ policy, and emphasised importance of security for East Timor’s welfare and future.284 Nevertheless, critics point out that Australia’s aid has been characterised by a lack of humanitarian assistance for East Timor, and rather, an emphasis on
280 Anderson, ‘Aid, Trade and Oil’, op.cit., p.115. 281 Budget, ‘Minister’s Foreword 2000-01’, op.cit., 282 Source: The Auditor-General Audit Report, op.cit.,; * estimate, 283 Vromen and Gelber, op.cit., pp.156-157. 284 Vromen and Gelber, op.cit., p.164; Alexander Downer, ‘Australia-responding to Indonesia’s transformation: address in the Australia-Asia Institute’s 1999 Australia in Asia Lecture Series, State Library of NSW, Sydney, 1 March 1999, Parliament of Australia, PARLINFO WEB, http://parlinfoweb.aph.gov.au/piweb/ [Accessed 17 July 2006].
106 security and the policing. Australia’s aid has been strategic for the pursuit its national interests.285 East Timor’s unstable situation has much possibility to cause diplomatic tension and refugee problems, just as in 1975 and 1999. However, if East Timor will be stable, it would create import-export opportunities for Australian business for opening Australian investment in East Timor. 286 In this regards, Australian merchandise trade with East Timor in 2005 showed that exports were AU$18 million while imports to Australia were only AU$ 1 million. 287 Thus, Australian aid exemplifies ‘yesterday’s developing countries in East Asia have become trading partners’ as Hughes remarked.288 This seems to make explicit that the formulations of the Howard Government’s HR approach currently carry a conviction, concerning the appropriate setting of global trade, which are weighted much more in favour of the production of aggregate wealth. This is also manifest in Australia’s regional political economy where colonial themes resonate, as Anderson has argued.289 What has been Australia’s intention? In this regard, a consequent must be raised. It indicates that AusAID for East Timor has been preoccupation in Australian foreign policy for giving priority to economic concerns. Consequently, it can be argued that AusAID for East Timor has reflected Australian commercial concerns rather than humanitarian needs. As discussed in Chapter 1, advanced western countries have shown a sceptical response to genuine proclamations of humanitarian intervention and aid programs as pretexts for a postcolonial reassertion. This is not exclusively Australia. The lack of morality has in fact been central critic in foreign policy. Falk offers the sceptical view of intervention of today’s states, asserting that, “States rarely shape their foreign policy according to moral considerations.”290 States thus often adopt realist stances that try to exclude HR concerns, but at the same time, contemporary realists seek other national interests through the
285 Anderson, ‘Aid, Trade and Oil’, op.cit., p.115. 286 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.2. 287 DFAT, Fact sheets, ‘East Timor’, http://www.dfat.gov.au/geo/east_timor/index/html [Accessed 6 December 2005]. 288 Hughes, op.cit., 289 Anderson, ‘Aid, Trade and Oil’, op.cit., p.115. 290 Richard Falk, Human Rights and State Sovereignty, op.cit., p.156.
107 vehicle of overt concern for HR.291 It can be argued that Australia has shown the same symptoms as well. Today’s government foreign policy has preferable trading features embedded within it. There has been increasing criticism of the Howard Government’s narrowing view and its self-interest which is seen as lacking morality in terms of the purpose of Howard government’s aid. Critics say that Australia under the Howard Government has concealed East Timor’s share of gas and oil wealth in the Timor Sea. This was a strong reason to take action for humanitarian intervention for the long suffering East Timorese. Moreover, the approaches to HR of the Howard Government have been criticised as being ‘exploitation’ in terms of the relentless and inhumane management of issues regarding a negotiation of maritime boundary in the Timor Sea after East Timor’s official independence. This view and the question that the extent to which the Howard Government has evolved in trade policy to set economic globalisation will be examined in Chapter 3. Irrespective of any different approach of the Howard’s foreign policy with regard HR, it should come as no surprise that has been compromised by globalisation and economic globalisation typically. In particular, the Government has downgraded its priorities for international human rights principles. Moreover, there has been increasing criticism that Australia under the Howard Government’s has actively pursued its national interests focussing on narrow nationalism that involves negative, features, and gives primacy to the doctrine of the self. The Howard government has used a narrow definition of the national interests, meaning, “Australian foreign policy increasingly requires an understanding of national political processes and practices”.292 Wesley asserts that: The circumstances of Australia’s economic development imparted a particular set of attitudes towards national prosperity in relation to the rest of the world, and a unique set of choices concerning Australia’s international economic relations. 293
291 Firth, op.cit., p.245. 292 Vromen and Gelber, op.cit., p.150. 293 Wesley, ‘Setting and Securing Australia’s National Interests: The National Interests as Values’, in Ian March (eds), op.cit., p.167.
108 In addition, Lee argues that, “Australia’s human rights stance has had the limited options for influence available to a western middle-seized power situated in the Asia-Pacific region’. 294 It might be fair to say that this selective policy has shaped HR approach as well. So far, under globalisation, Australia’s HR stances has characterised as selective and unprecedented challenge, yet the motivation for its national interests has been consistent, and such selective HR approaches has demonstrated negative direction to HR issues.
Conclusion
Globalisation has been a major pressure on the capacity of states to make policy towards HR. This has been indeed true for Australia. Over the last quarter century, in particular, since the 1970s, there have been significant changes in Australia’s foreign policy with regard HR. Under successive Australian governments, HR approaches under Whitlam, Fraser, Hawke and Keating recognised global awareness, showing a global shift. In particular, Australia under the Hawke and Keating Labor Party sought to be one of an active, independent member of the international community by improving and promoting international HR remarkably in many ways with practical activities. Australia’s approaches to HR have reflected Australia’s many available choices in order to pursue national interests. Therefore, not surprisingly, Australia has presented inconsistent and sometimes quite contradictory approaches to HR. In particular, since Hawke embarked on globalisation in 1983, Australia’s foreign policy has changed greatly with increasing priority on global trade and investment. These economic structures and interests have been the main factor that influenced HR in practice. In terms of its relationship with Indonesia and the vexed issue of HR, the Labor Party’s approaches of HR was questioned, especially towards East Timor. While the Labor Party took a positive attitude to reflect HR domestically, universality was far more limited in policies towards outside citizens like East Timor. Rather Australian policy
294 David Lee, Search for Security: The Political Economy of Australia’s Postwar Foreign and Defence Policy, Allen & Unwin, Canberra, 1995, p.84.
109 could often be associated with negative and aggressive features such as selfishness, considered seeking their own interests, and not considered the interests of East Timor. From 1996, Australia’s HR approach, and its perennial conflicts with the demands of international trade, has also been very evident in the policies of the Howard Government. However, the approach of the Howard Government has differed in substance and emphasis from that of the Labor Party. The HR approach under Howard has been distinctly more comprehensive and strategic in conception and practice. Howard has actively downgraded support and promotion of international human rights held by Australia’s sovereignty and national interests. It might be fair to say that Australia’s foreign policy with regards to HR, has been determined by globalisation, which in turn has created contradictions. Its HR approaches have indicated a negative direction for sustained commitment to international HR principles. Australia’s role in protecting HR in East Timor has demonstrated Australia’s global economic priorities associated with neo-liberal and neo-colonial themes, giving great emphasis to security and forcing neo-liberal development programs in East Timor. Overall, under globalisation, Australia has explored its new freedom of choice very actively with regard to HR. Moreover, since Australia embarked on globalisation, Australia has generated by global trade system with neo- liberal ideology in order to enhance its national interests, supporting MNCs’ roles in domestic and expatriate. Economic interests have been important in Australia, and there is no doubt that Australia’s economic priorities have been increasingly played out in its foreign policy. However, in giving priority to economic issues has reduced priority given to moral considerations in interaction with others. In particular, the approaches toward East Timor under the Howard Government have been questioned with regards to the negotiations and conduct of maritime boundaries in the Timor Sea with East Timor. This will be further explored in case study in Chapter 3 which discusses the processes of negotiation of maritime boundaries in the Timor Sea, and Australia’s role in promoting economic globalisation.
110 Chapter 3
A balance between Australia’s strong economic concerns and Human Rights: A case study - negotiations of maritime Boundary in the Timor Sea
The priority given to Human Rights (HR) in Australian foreign policy under globalisation has not been consistent because of the precedence given to economic and business considerations in pursuing Australia’s national interests. Australia’s HR stances have essentially been shaped in terms of the potential for influence available for its national interests. Such HR stances have been a negative influence in East Timor. This policy is clearly seen in the dispute regarding the negotiations of maritime boundaries in the Timor Sea despite public avowals to the contrary. For example, Australian Foreign Minister, Alexander Downer has asserted, “Australia is a committed friend and partner of East Timor”.1 By contrast, Rodney Tiffen asserts that, “East Timor is Australia’s greatest foreign policy disaster of the last quarter of a century”.2 Haigh also asserts that issues of East Timor define and illustrate where Australia as a nation “lost the plot.” 3 Moreover, Australia’s recent diplomacy to East Timor has been criticised, in particular, regarding the negotiations of the maritime boundaries with East Timor. Critics argue Australia’s priority given to economic choices through the negotiation and conduct of maritime boundaries have undermined East Timor. Australia’s approaches have been criticised that Australia has had mainly concerns for its own economic well-being which has left no importance for international principles and undermined HR East Timor. Critics also continue to point out despite apparent idealism under the Hawke/Keating Governments,
1 Alexander Downer, Speech to open the Donors’ Meeting on East Timor, Canberra, 14 June 2001, DFAT, http://www.dfat.gov.au/media/speeches/foreign/2001/014606_fa_donors.html [Accessed 20 August 2006]. 2 Tiffen, op.cit., p.1. 3 Haigh, op.cit.,p.1; Regarding Australia’s policy on East Timor, Laurie Brereton, a Shadow Minister for Foreign Affairs stated that “long and tragic history that reflects little credit on either side of mainstream Australian politics over the past quarter of a century – from Whitlam to Keating, from Fraser to Howard’ (cited Haigh, op.cit., p.21.)
111 diplomacy took on neo-liberal ideology as was demonstrated in the 1989 Timor Gap Treaty. There are also accusations that the Howard Government’s demonstrated neo-liberal features in the negotiations of maritime boundaries with East Timor, to the latter country’s disadvantage. In particular, the Howard Government has been criticised for allowing Australia to exploit East Timor’s wealth, which is desperately needed for the social and economic development of East Timorese. Questions arise as to what extent has Australia’s foreign policy towards East Timor regarding the negotiations of maritime boundaries been demonstrated Australia’s unique choices concerning strong economic concerns and formulating neo-liberal economic views. The purpose of this chapter is to examine to what extent Australia’s approaches with regards to the negotiation of maritime boundaries in the Timor Sea has demonstrated the Australian choices reflecting economic global view, and resulted in showing Australia’s lack of moral justification, meaning that Australia has explicitly and implicitly refused to meet its HR obligations. This chapter investigates Australian foreign policies on East Timor, focussing on the negotiations of maritime boundary agreements that Australia has negotiated and conducted. The first part examines the approaches of successive Australian governments (from 1971 to 1996) towards the maritime boundary in the Timor Sea area before East Timor was independent. It examines the extent to which Australia negotiated and conducted maritime boundaries with Indonesia at the expense of human rights in East Timor. The second section then deals with the Howard’s Government’s approaches towards the maritime boundary after East Timor became a state.
1) Australia’s approach towards the Timor Sea between 1971 and 1996
Between 1971 and 1996, Australia’s approaches to the seabed in the Timor Sea, such as the creation of Timor Gap and the 1989 Timor Gap Treaty, were problematic in many ways, and demonstrated Australia’s choices for its national interests. In particular, the Hawke and Keating Labor Governments
112 demonstrated Australian seemingly neo-liberal foreign policy. This policy highlighted the choice between the support of HR and economic prosperity in aligned with domestic policies. This section examines the approaches of successive Australian governments from 1971-1999 towards East Timor through the negotiations of maritime boundary in the Timor Sea.
The birth of the Timor Gap
The history of the negotiations of the maritime boundaries is not new; in fact, they have a long and complex history. The Timor Sea was known to be relatively rich in resources of oil and gas. Australia had a high degree of concerns in the seabed resources in the Timor Sea for a long time in terms of the economical significance of the oil and gas reserves. Commercial negotiations between Australia and East Timor began in 1893 after exploration of on-shore oil resources in Portuguese Timor first commenced, followed by small-scale export of this resource.4 Australia sought commercial oil prospecting links from 1905.5 In 1956, Australian-based Timor Oil Ltd. commenced offshore explorations, and other consortium companies such as Arco Australia Ltd, Woodside Petroleum, and Burmah Oil Company conducted aeromagnetic surveys from 1963-1968, which revealed that Timor Sea and Bonaparte Gulf were highly prospective areas of viable oil and gas reserves.6 Several Australian companies then conducted oil explorations on the south coast of Portuguese Timor from 1970 to 1972.7 Australia and Indonesia began negotiating a maritime boundary in the Timor Sea in the 1960s. On 18 May 1971, Australia and Indonesia signed an
4 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.8; La’o Hamutuk means ‘walking in together’; La’o Hamutuk is a joint East Timorese- international organization that monitors, analyses, and reports on the principal international institutions present in East Timor as they relate to the physical, economic, and social reconstruction and development of East Timor. 5 Hasings, 1999, cited Cotton, op.cit., p.4. 6 R. Laws and C. Kraus, 1974, cited Robert J. King, ‘The Timor Gap, Wonosobo and the Fate of Portuguese Timor,’ Journal of the Royal Australian Historical Society, .88(1), 2002, p.3. 7 Robert J. King, ‘The Timor Gap, 1972-2002’, July, 2002, pp.2-3, http://www.aph.gov.au/house/committee/jsct/timor/subs/sub43.pdf [Accessed 15 May 2006]; The La’o Hamutuk, ‘Analysing Australian Assistance to East Timor’, op.cit., p.8.
113 Agreement establishing Certain Seabed Boundaries, covering the Arafura Sea from west of Cape York to north of Arnhem Land. On 9 October 1972, both states signed a supplementary Agreement establishing Certain Seabed Boundaries in the area of the Timor and Arafura Seas that endorsed Australia’s claim to a more extensive seabed boundary, to the west in two segments to a point northwest of the Australian Territory of Ashmore and Cartier. The Agreement came into effect in November 1973. 8 The 1972 treaty was overwhelmingly Australia’s favour, because Indonesia accepted Australian sovereignty over nearly all (85 per cent) of the northwestern continental shelf based on Australia’s continental shelf argument.9 Australia’s theory is known as the “two shelves” for its claim over the area west of the longitude of the Timor Trough. Foreign Minister, William McMahon claimed regarding the Timor Trough: Huge steep cleft or declivity, extending in an east-west direction, considerably near[er] to the coast of Timor than to the northern coast of Australia. It is more than 550 nautical miles long and on the average 40 miles wide, and the sea-bed slopes down on opposite sides to a depth of over 10,000 feet.10
Since 1953, Australia has relied on its recognition of the continental shelf argument. Australia has claimed that the continental shelf extends to a geomorphologic feature known as the Timor Trough, which is 3,000 metres deep and is to be found 30-60 nautical miles from the coast of Timor. In fact, Australia’s theory explains that: The rights claimed by Australia in the Timor Sea area are based unmistakably on the morphological structure of the seabed. The essential feature of the seabed beneath the Timor Sea is a huge steep cleft or declivity called the Timor Trough, extending in an east-western direction, considerably
8 The Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties 49th Report, November 2002, http://www.austlii.edu.au/au/other/jscot/reports/49/chapter1.html#Heading20 [Accessed 3 July 2006]; Bill Campbell, ‘Maritime Boundary Arrangements in the Timor Sea’, in Rothwell and Tsamenyi (eds), op,cit., p.57. 9 King, ‘The Timor Gap, 1972-2002’, op.cit., p.3; Mike Head, ‘Timor Gap dispute highlights motives behind Australian intervention’, World Socialist Web Site, http://www.wsws.org, October 25, 2000, [Accessed 15 January 2005]. 10 McMahon, 1970 cited King, ‘The Timor Gap, Wonosobo and the Fate of Portuguese Timor’, op.cit.,p.3.
114 nearer to the coast of Timor than to the northern coast of Australia. It is more than 550 nautical miles long and on the average 40 miles wide, and the seabed slopes down on opposite sides to a depth of over 10,000 feet. The Timor Trough thus breaks the continental shelf between Australia and Timor, so that there are two distinct shelves, and not one and the same shelf, separating the two opposite coast. The fall-back median line between the two coasts, provided for in the convention in the absence of agreement, would not apply for there is no common area to delimit.11
Moreover, Australia also claimed that the continental shelf argument was consistent with the 1958 Geneva Convention. Article 6.1 states: Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In absence of agreement and unless another boundary line is justified by special circumstances, the boundary line is the median line, every point of which is equidistant from the nearest points of the baselines form which the breadth of the territorial sea of each state is measured.
While Australia and Indonesia had the 1972 agreement, they also had a problem in terms of adjustments to be made with Portugal, to those portions of the boundary lines between points A15 and A16 and between A17 and A18 (Refer to Map 3.1), namely, a gap of approximately 130 nautical miles between the two segments. Portugal opposed the seabed agreement between Australia and Indonesia. Portugal did not join the negotiations of the this maritime boundary because it argued its sovereignty over the seabed, based on the median line determination between East Timor and Australia in accordance to international law as formulated at the 1958 Geneva Convention.12 The 1958 Convention not only explicitly addressed the particular case where there were two continental shelves, but also allowed the continental shelf argument for the search for oil beneath the water of the gulf outside
11 Campbell., op.cit, p.56; Australian Yearbook of International Law, 1970-1973, pp.145-146, cited Nuno Sérgio Marques Antunes, ‘Spatial Allocation of Continental Shelf Rights in the Timor Sea: Reflections on Maritime Delimitation and Joint Development’, Timor Sea Office, unknown publishing year, p.4, http://www.timorseaoffice.gov.tp/journalism.htm [Accessed 30 June 2006]. 12 King, ‘The Timor Gap, 1972-2002’, op.cit., pp.5-7.
115 territorial limits involving about 5,000Km2 of continental shelf.13 In 1942, the continental shelf argument originated in an agreement between Venezuela and the United Kingdom about a boundary dividing ‘the submarine areas of the Gulf of Paria’. Under this agreement, the parties agreed not to assert their sovereignty or control in each other’s sector. In 1945, the USA took the initiative to assert sovereign rights over the natural resources of its continental shelf without qualification in the Truman Proclamation. 14 After that, the Truman Proclamation was developed as state practice. Some coastal states argued the right to exercise their sovereign rights over the continental shelf for the exploitation of natural resources. 15 Therefore, the continental shelf argument was generally recognised in 1972 as the basis for the determination of maritime boundaries at that time.16 Consequently, in the case of Timor, a gap of approximately 130 nautical miles between the two segments was not covered, and this created a new gap known as the “Timor Gap”.17 The Timor Gap became an important subject between Australia, Indonesia and Portugal. Australia insisted on its sovereignty over the Timor Gap. In this regard, when Portugal allowed exclusive exploration in the Timor Sea, covering 23,192 square miles (60,700 sq kilometres) to a US company, Oceanic Exploration Corporation in 1974, Australia (the Whitlam Government) immediately protested against Portugal’s right to allow exploration in an area over which Australia claimed sovereignty. 18 However, Indonesia regretted its generosity to Australia by allowing Australian sovereignty over nearly all of the northwestern part.19 Thus, the Timor Gap was the context in which Australia and Indonesia entered into
13 J. Brown, et. al., Case Studies in Oceanography and Marine Affairs, the Open University, Oxford, 1991, pp.54-55. 14 On 28 September 1945, the US President Truman proclaimed to respect to coastal fisheries in certain areas of the high seas and the natural resources of the subsoil and sea-bed of the continental shelf (José A. de Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea, Martinus Nijhoff Publishers, Hague, 1997, p.3.) 15 Yturriaga, op.cit., p.15; Brown, et al, op.cit., pp.54-55. 16 Catry, op.cit., ; Yturriaga, op.cit., p.15. 17 Campbell, op.cit., p.57. 18 Campbell, op.cit., pp.58-59; King,‘The Timor Gap, 1972-2002’, op.cit., p.11; The La’s Hamutuk Bulletin ‘Analysing Australian Assistance to East Timor’, op.cit., p.8. 19 Roger, S. Clark, ‘Timor Gap’, in Peter Carey and G. Carter Bentley (eds), East Timor at the Crossroads: The Forging of a Nation, Cassell, New York, 1995, p.74.
116 the agreement that was called the Timor Gap Treaty in 1989. Since the Timor Gap was created, conflict resolution has still continued.
Map 3.1 20
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The Timor Gap Treaty
The processes to establish the Timor Gap Treaty of 1989, including pre- negotiations, exemplifies the connection between Australia HR stances and economic priority. It also illustrates how the foreign policies of successive Australian Governments were influenced by globalisation. In particular, the Labor Party’s foreign policy was inconsistency in terms of Australian reaplpoitik for pursuing its national interests, and resulted in minimising the importance of HR in East Timor. Australia started to negotiate with Indonesia for the delimitation of the continental shelf between Australia and East Timor in 1979. In the early stages of negotiations on the Timor Gap Treaty, Indonesia claimed a line of equidistance as the continental shelf boundary between the coastlines of East Timor and Australia. Like Portugal, Indonesia argued an equitable principle of
20 Source: Uniya, Jesuit Social Justice Centre, http://www.uniya.org/talks/brennan_3sep04.html [Accessed 10 June 2006].
117 a median line in accordance with new international law, the 1982 United Nations Convention of the Law of the Sea (UNCLOS) that territorial waters should extend for 200 nautical miles offshore. 21 The UNCLOS was being refined and the median line principle was gaining dominance as general acceptance rather than the shelf continental determination. Thus, Indonesia asserted the 200 nautical miles distance criteria, which was affirmed by other maritime boundary cases, such as the Libya v. Malta decision of the International Court of Justice (ICJ) in 1985.22 Nevertheless, Australia made a counter claim using the continental shelf argument as it had done in the 1972 Agreement. Australia asserted that its approach was based on the of the 1958 Geneva Convention, and the earlier decisions of the International Court, the 1969 North Sea Continental Shelf Cases. 23 Australia also relied on domestic jurisdiction. In the case of Western Mining Corporation Ltd v Commonwealth, the decision of Federal Court allowed an authorisation of exploration for petroleum in the seabed in an area of the continental shelf under the Petroleum (Submerged Lands) Act 1967 (Cth).24 Australia and Indonesia created a ‘pending zone’. In order to solve these different opinions, both countries decided to set up a provisional arrangement in accordance with the 1982 UNCLOS. Article 83(3) of the UNCLOS points out that entering into a provisional arrangement would at least be seen as
21 The 1982 UNCLOS, Article 55, 74, 83, cited Gillian Triggs, ‘Creative Conflict Resolution: The Timor Sea Treaty between Australia and East Timor’, in M. Langton, et al., (eds), Honur Among Nations?: Treaties and Agreements with Indigenous People, 1st edition, Melbourne University Press, Melbourne, 2004, p.333. 22 Gillian Triggs, ‘Commercial Risks of Investment In The Timor Gap Treaty Zone of Cooperation Area A’, in Rothwell and Tsamenyi (eds), op.cit., p. 136; Triggs, ‘Creative Conflict Resolution’, op.cit., p.333; The ICJ states that, “since the development of the law enables a state to claim that the continental shelf appertaining to it extends up to as far as 200M from its coast, whatever the geological characteristics of the corresponding seabed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the states concerned or in proceeding to a delimitation as between their claims (Antunes, op.cit.,p.28 and p.33). 23 Victor Prescott, ‘East Timor’s Potential Maritime Boundaries’, in Rothwell and Tsamenyi (eds), op.cit., p.136. 24 (1994) 121 ALR 661, at 55; Poh-Ling Tan, ‘Diving into the deep: water markets and the law’, a progressed working paper, p.8, http://www.ipa.org.au/files/0804paper_tan.pdf. [Accessed 29 May 2006]; Poh-Ling Tan, at Queensland University of Technology, points out that the Australian High Court started to emphasise ‘property’ rather than fundamental characteristics of property since the early 1990s.
118 making an effort at finding a solution.25 Thus, on December 11, 1989, both Australian and Indonesian Foreign Ministers, Gareth Evans and Ali Alatas signed the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation (ZOC) in an Area Between the Indonesian Province of East Timor and Northern Australia (the Timor Gap Treaty). Both countries agreed in principle in 1985, and agreement was reached in 1988. It finally came into effect in 1989, and then came into force on 9th February 1991.26
Map 3.2: The Timor Treaty Gap 27
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The Timor Gap Treaty covered approximately 60,000 square kilometres of the Timor Sea. Its main purpose was to establish a zone of cooperation in the Timor Gap for the joint exploration and production of natural resources between Australia and Indonesia. The Treaty was regarded as being effective for at least 40 years or until the parties could agree on a permanent boundary.28
25 Campbell, op.cit., p.61. 26 Raymond Souster, ‘End the moratorium: the Timor Gap Treaty as a model for the complete resolution of the Western Gap in the Gulf of Mexico’, Vanderbilt Journal of Trnsnational Law, 2002, 35(3), p.944. 27 atns, http://www.atns.net.au/objects/Timor.JPG [Accessed 25 May 2006]. 28 Article 2 of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia [The Timor Gap Treaty]; King, ‘The Timor Gap, 1972-2002’, op.cit., pp.23-27.
119 A new principle, “sovereign neutrality” was demonstrated under the Timor Gap Treaty. This principle enabled resource exploitation to proceed jointly under the international law.29 Article 2(3) states: Noting contained in this Treaty and no acts or activities taking place while this Treaty is in force shall be interpreted as prejudicing the position of either Contracting State on a permanent continental shelf delimitation in the zone of Cooperation nor shall anything contained in it be considered as affecting the respecting sovereign rights claimed by each Contracting State in the Zone of Cooperation.30
The Timor Gap Treaty established the Zone of Cooperation (ZOC). The area was divided into three sub-areas named A, B and C for a regime that allowed for exploration and development of hydrocarbon resources. ZOC C was under Indonesian jurisdiction, ZOC B was under Australian jurisdiction, while the largest area, ZOC A lay between ZOC C and B.31 (Refer to Map 3.2). It was also decided that revenue was to be shared 90 per cent and 10 per cent, with the closer country receiving 90 per cent under ZOC B and C, and the resources to be shared equally (50-50) in ZOC A. 32 ZOC A involved substantially lucrative oil and gas fields. ZOC A produced rich oils. The Treaty established the Petroleum Mining Code and the Model Petroleum Sharing Contract, which addressed the obligations and rights of the Joint Authority and the petroleum contractor, and the Model Petroleum Sharing Contract.33 Australia and Indonesia contracted a production sharing global oil companies regarding the exploration and exploitation resources in ZOC A.34 In December 1991, Australia and Indonesia awarded production sharing contact to those oil companies such as ConocoPhillips, Royal Dutch Shell and Australian Woodside Petroleum for the explorations and exploitation of resource, and exploration continued through the 1990s.35 Consequently, both
29 Triggs, ‘Creative Conflict Resolution’, op.cit., p. 334. 30 Article 2(3) of the Timor Treaty Gap. 31 Article 2 of the Timor Gap Treaty; King, ‘The Timor Gap, 1972-2002’, op.cit., pp.23-27; Australia and Indonesia established a Ministerial Council and a Joint Authority to exercise Area A for exploration and development. 32 Sam Bateman and Donald R. Rothwell, ‘Rethinking Australia’s Legal and Policy Options’, in Rothwell and Tsamenyi (eds), op.cit., p.6; Souster, op.cit., p.946. 33 Souster, op.cit., p.948. 34 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.8. 35 The La’o Hamutku Bulletin, ‘The CMATS Treaty with Australia’, 7(1), April 2006, p.3.
120 states gained huge benefits. In this regard, Elang-Kakatua in ZOC A (Refer to Map 3.3) had a value of production around $250 million, returning $5 million in revenue to both states.36 It could be argued that the Timor Gap Treaty was trade invest agreement that granted global oil companies for exploration and exploitation of the rich source of off-shore. The Timor Gap Treaty prompted much debate on Australia’s approaches over the maritime boundaries and commercial interests. Australia thought that this Treaty brought to a successful conclusion the negotiations that had been ongoing between Australia and Indonesia since the 1970s. There were comments such as “triumph of compromise” and “an imaginative approach to breaking deadlock in boundary negotiations”.37 The lines of the ZOC were drawn based on ‘simplified equidistance lines’ between East Timor and Indonesia. Moreover, the drawing of the ZOC was on the grounds of the termini of the 1971 and 1972 seabed limits agreements between Australia and Indonesia. It resulted in the ‘coffin’ shape of the ZOC.38 Some favourable opinions encouraged the view that the Timor Gap Treaty was a unique arrangement for an effective use of petroleum exploration and exploitation in offshore areas between those countries without deciding permanent maritime boundary (applying an interim arrangement that allows exploitation of the oil and gas resources to proceed).39 Moreover, Article 2 (3) of the Timor Gap Treaty protected the legal rights under international law of both states for the exploitation and development of the area without fearing a prejudice. This ‘without prejudice’ clause was effective for both states to make effective use of valuable resources.40 This is because the cluse presents the positions of both countries on maritime boundaries, setting aside discussion of their conflicting claims for
36 Payne 1999 cited King, ‘The Timor Gap, 1972-2002’, op.cit., p.28. 37 Kaye, Mito, cited Souster, op.cit., p.948. 38 King, ‘The Timor Gap, 1972-2002’, op.cit., p.24. 39 Bateman and Rothwell, op.cit., p.6; Souster, op.cit., p.929 and 959. 40 Article 2(3) : Nothing contained in this Treaty and no acts or activities taking place while the Treaty is in force shall be interpreted as prejudicing the position of either Contracting State on a permanent continental shelf delimitation in the Zone of Cooperation nor shall anything contained it be considered as affecting the respecting sovereign rights claimed by each Contracting State in the Zone of Cooperation (cited Triggs, ‘Creative Conflict Resolution’, op.cit., pp.334-335).
121 as long as the Treaty would continue effectively.41 The successful result of the Timor Gap Treaty was a good example for other states in the Asia Pacific that still had unsolved maritime boundaries.42 It can be said that the Treaty was a viable model for a trade system in maritime agreement for economic benefits. From this point of view, some critics have pointed out that only political and economic considerations were addressed in the Australian approach to the Timor Gap Treaty. Australia’s approach showed its realpolitik or pragmatism towards the negotiation of maritime boundaries with Indonesia. In this regard, legal opinions criticise that fact that legal equilibrium was abandoned in the Timor Gap Treaty. There are many difficulties in arranging the 1989 Treaty. This is because maritime delimitation and joint development are basically unrelated concepts, because of the existence of areas of overlapping maritime entitlements; in short, legal rights and other interests are exclusive in nature. In order to create an effective treaty, a combination of legal rights and commercial interests, an approach of realpolitik, had to be taken into account. As discussed in Chapter 2, Australian pragmatism or realpolitik was demonstrated under successive governments’ foreign policy. Global wave since the early 1970s and Australia’s embark on economic globalisation since the 1983 have accelerated Australia’s emphasis on economic priority in its foreign policy. Thus, the 1989 Timor Gap Treaty, including pre-negotiation was a result of Australia’s pragmatic approaches that has been motivated by economic concerns.
Economic propriety of the 1989 Timor Gap Treaty including pre- negotiations and approach to Human Rights
The Timor Gap Treaty resulted in a number of problems in many ways. In February 1991, the Portuguese Government disagreed with this agreement, and immediately brought an issue against both to the International Court of Justice (ICJ) in The Hague, claiming the invalidity of the 1989 Treaty. Portugal asserted this on two premises: 1) Portugal was the administering power over
41 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.6. 42 Bateman and Rothwell, op.cit., p.6; Souster, op.cit., p.929.
122 East Timor under the UN Charter; and 2) the East Timorese’s right to self- determination.43 In June 1994, by a 14-2 vote, the ICJ decided to dismiss this case by applying the principle that the Court could not make a judgement if one party did not belong to the ICJ jurisdiction, and accepted Australia’s argument that Indonesia was not a party to the case, because Indonesia did not accept the jurisdiction of the ICJ. 44 Yet the ICJ upheld East Timor’s right to self- determination under the UN Charter with the comment of ‘irreproachable’.45 In response to this, Evans criticised Portugal’s action over East Timor and stated Australia would support the human rights situation in East Timor under Indonesia’s control.46 Not only Portugal, but also a number of other critics, noted the illegality of the 1989 Treaty. An American scholar, Clark, prolific in studies of international law including human rights and criminal matters, pointed out Australia’s breach of its international obligations in entering into the Timor Gap Treaty with Indonesia. He showed that Australia had breached two resolutions of the UN General Assembly: the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, and the 1974 Resolution entitled Definition of Aggression. 47 Portuguese naval office and legal scholar, Antunes, also argued that the Timor Gap Treaty was invalid, and that this and the 1972 Timor Gap were not binding upon East Timor.48 On the other hand, Australia claimed that Indonesia effectively controlled East Timor, and the Timor Gap Treaty was valid as a result of the executive power of the Commonwealth and the implementing legislation. 49 The High Court in Australia rejected this claim by Australia, but judged, however, that the Timor Gap Treaty was valid under the Australian Constitution, Section
43 Campbell, op.cit., p.64. 44 Campbell, op.cit., p.64; Two judges dissented and one of these two argued “Australia’s action in entering into the Timor Gap Treaty may well be incompatible with the rights of the people of East Timor.” (The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.8). 45 King, ‘The Timor Gap, 1972-2002’, op.cit., p.27. 46 The Australian Year Book of International Law, Vol.17, p.683 cited King, ‘The Timor Gap, 1972-2002’, op.cit., p.27. 47 Clark, ‘Timor Gap’, op.cit., pp.75-76 ; Bugalski, op.cit., p.290. 48 Antunes, op.cit., p.13. 49 Antunes, op.cit., p.11.
123 51(xxix) on the grounds of the case of Horta and Others v The Commonwealth of Australia in 1994, regardless of its lawfulness at international law.50 Thus, Australia’s approaches not only disregarded important international principles but also Australia’s accommodating its global trade priorities and resulting HR violations in East Timor. Critics point out that Australia betrayed East Timor because of an importance of economic relationship with Indonesia in terms of the negotiation of maritime boundaries in the Timor Sea. Australia’s HR approaches to East Timor were distinctly cruel. Firstly, the Whitlam Government allowed Indonesia to invade East Timor in 1975, despite his recognition of Portuguese East Timor as an anachronism and inheriting the concept of support East Timor’s self-determination since 1963. There were various reasons Australia to ignore East Timor. With the govern by the Portuguese Government collapsed on 25 April, 1974, East Timor’s FRETILIN (Revolutionary Front for an Independent East Timor) influenced by Marxist ideology, took an action for independence from Portugal, and controlled large parts of East Timor. The FRETILIN issued a unilateral declaration of independence on 28 November, 1974.51 However, as for security concerns, Whitlam expressed that Marxist communism regime- aligned with Russia and China would be established in East Timor.52 Moreover, to the USA, as Whitlam saw an importance of the strong alliance with the USA after the World War Second, Whitlam’s allowing Indonesia to invade East Timor was to follow the US’s view that undertook a strategy to control or exclude the ‘spread of communism’ based on Marxist ideology.53 Secondly, Commercial concern was clear. In 1974, as a result of seismic work, some petroleum companies reported that the Timor Sea, in the Kelp structure within the Timor Gap region, contained lucrative oil and gas fields, containing between 500 million and 5 billion barrels of oil as well as gas
50 Campbell, op.cit., p.65; Australian Government Australian Taxation Office, Legal Database, Horta and Others v. The Commonwealth of Australia, http://law.ato.gov.au/atolaw/view.htm?docid='JUD/181CLR183/00002' [Accessed 20 July 2006] ; Bugalski, op.cit., p.290. 51 DFAT, East Timor In Transition 1998-2000, op.cit., pp.2-3; 52 James Cotton, East Timor, Australia and Regional Order, RoutledgeCurzon, London and New York, 2004, p.4. 53 Haigh, op.cit., p.22 and 35; Cotton, op.cit., p.4.
124 reserves of some 50,000 billion cubic feet.54 Australian lobby groups such as the Industry Development Corporation and the Petroleum and Minerals Authority encouraged the Whitlam Government to support the oil business.55 The rich oil discovery was also attractive to Indonesia. Indonesia was the only member in Asia, of Organization of Petroleum Exporting Countries, and yet Indonesia had to face to prospect of being a net importer of oil by 2001. Oil companies were active lobbyists, because those companies hesitated to explore oil in disputed territories until a solution was found in an agreement, as they could not estimate the royalties from oil.56 Thus, Australia and Indonesia had to establish treaties concerning the delimitation of the Timor Gap. Given Portugal was reluctant to give foreign companies much encouragement to deal with commercial links in the Timor Sea, Australia thought that negotiations over the Timor Sea would be easier with Indonesia.57 Moreover, Whitlam was influenced by its expectation that Indonesia would give special favour in negotiating a seabed boundary in the Timor Gap, which had been created in 1972.58 Thus, Whitlam’s inconsistent HR approach was apparent in the maritime issues. Whitlam implemented its pragmatism and compromised with Indonesia. The 1974 Memorandum of Understanding (MOU) exemplifies Australia’s pragmatism in terms of pursuing its national interests. Indonesia hoped to draw a median line that would be close to a median line between East Timor and Australia. The 1974 MOU permitted Indonesian traditional fishermen access to certain waters in the vicinity of Ashmore Island and other small areas to the northwest of Western Australia. As a result, in 1981, both countries had a provisional fisheries boundary agreement, which allowed each country to conduct fisheries enforcement operations in the Timor and Arafara Seas.59 (Refer to Map 3.1.) Australia allowed Indonesia’s claim for a median
54 Westfield 1984, cited Robert J. King, ‘The Timor Gap, 1972-2002’, op.cit., p.9; Souster, op.cit., p.943. 55 Reynolds, op.cit., p.126. 56 Souster, op.cit., p.944. 57 The La’s Hamutuk Bulletin ‘Analysing Australian Assistance to East Timor’, op.cit., p.8. 58 King, ‘The Timor Gap, Wonosobo and the Fate of Portuguese Timor’, op.cit., p.1; Whitlam agreed to Indonesia’s incorporation over East Timor at the meeting with President Suharto at Wonosobo near Yogyarkarta in 1974. 59 This agreement was entered in 1992 and came into force in 1993; Bateman and Rothwell,
125 line to apply for the agreement of fishing grounds. Australia refused, however, to apply these same principles for seabed resources, on the grounds that three measurements existed; Australia’s continental shelf claim towards the northernmost boundary; Indonesia’s 200 nautical mile exclusive economic zone claim towards the southernmost boundary; and equidistant lines towards the eastern and western boundaries.60 Thus, there was inconsistency between Australia’s claim, the continental shelf argument and Indonesia’s claim of median line. The Whitlam Labor Government’s enormous pragmatism in terms of political and economic compromise was clearly apparent the maritime agreement. As a result of the compromising with Indonesia, East Timor became a direct victim of Indonesia’s state violence, such as plunder, rape and murder undertaken by the Indonesian Armed Forces. It was estimated that more than 200,000 people (one third of the population) were killed. The TNI also violated as separatist movements in Acrh and West Irian. 61 Noam Chomosky stated that in relative terms this was the worst slaughter since the holocaust. 62 However, in 1976, Whitlam asserted “despite Indonesia’s invasion of Timor, the relationship between Australia and Indonesia must be preserved’. 63 Australia’s blind eye towards Indonesia led to significant HR abuse. Indonesia’s annexing of East Timor was regarded as being an illegal action against the UN Charter, and Australia’s recognition of the Indonesian occupation in East Timor meant that Australia was also breaching an international obligation. The UN General Assembly, the Security Council and other international institutions denounced Indonesia’s illegal occupation of East Timor and did not accept Indonesia’s sovereignty over East Timor. They recognised Portugal’s former colonial rules as the legitimate authority. While the East Timorese appealed to Australia for rescue from the Indonesian invasion in 1975, the Whitlam government chose to development a
op.cit., 4; Australia and Indonesia entered into a MOU regarding the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement that established the Provisional Fisheries Surveillance and Enforcement Line (Campbell, op.cit., pp.71-73). 60 Souster, op.cit., p.946. 61 Burchill, ‘East Timor: Towards Rwanda’, op.cit., 62 Chomsky cited Burchill, ‘East Timor: Towards Rwanda’, op.cit., 63 Viviani 1999, cited Vromen and Gelber, op.cit., p.161.
126 relationship with Indonesia. Additionally, in 1975, the Whitlam Government supported Indonesia’s military aid program, contributing $A25 million for naval boats and twelve military aircraft.64 It is important to note that the East Timor Government and the East Timorese still criticise Australia today, expressing that Australia owes a tremendous historical debt to the East Timorese, and arguing that Australia betrayed East Timor and denied East Timorese self-determination.65 Like Whiitlam, Fraser also demonstrated his pragmatic approach. While Fraser was initially critical of Indonesia’s invasion, he followed it by the pressure from the USA.66 Fraser contributed a great of material aid to the Indonesian military throughout the late 1970s, to prevent a savage operation from East Timorese guerrilla resistance.67 When Indonesia invaded East Timor, about 1800 East Timorese escaped to Australia, the Fraser government did not protect them. Indeed the refugee were place in legal limbo as the government refused to finalise their claim for asylum because Australia claimed refugees in Portugal, namely, Portuguese sovereignty in accordance with the UN’s concept of sovereignly. 68 Moreover, Fraser commented “the important thing was to look to the future and to alleviate as far as possible the human suffering which had dome with the fighting and associated disruption in the territory”.69
Like Whitlam, Fraser demonstrated its pragmatism over East Timor by supporting Indonesia in terms of the conduction of maritime agreement in the Timor Sea. Australia under the Fraser Government, officially recognised Indonesia’s illegal annexation of East Timor in 1978 after substantial deposit of oil and gas were discovered under the Sunrise Gas field in the Timor Sea in 1974.70 Australia’s Minister for Foreign Affairs, Andrew Peacock announced
64 Haigh, op.cit., p.25; Baehr, op.cit., p.91. 65 The La’s Hamutuk Bulletin ‘Analysing Australian Assistance to East Timor’, op.cit., p.8; Aarons and Domm 1992, and Pilger 1994 cited Anderson, ‘Aid, Trade and Oil’, op.cit., p.114. 66 Maire Leadbeater, ‘The Timor Gap- Xanana Gusmao was welcomed to New Zealand as an honoured guest, but New Zealand has yet to face the truth about its role in East Timor’s bloody past’, http://www.converge.org.nz/crao0946.html [Accessed 15 July 2006]. 67 Max Lane, ‘East Timor: The Indonesian – Australian invasion’, Green Left Weekly, September, 2000, http://www.geocities.com/scolitin/australia.html [Accessed 4 April 2006]. 68 Skeers, op.cit., 69 Firth, op.cit., p.186. 70 Head and Tenenbaum, op.cit.,
127 that Australia and Indonesia were ready to negotiate about the delimitation of the continental shelf between Australia and East Timor.71 Under the Fraser Government, in 1979, Australia was also the country to give de jure recognition that was a stronger form of recognition than de facto recognition.72 Simultaneously, Australia started to negotiate with Indonesia for the seabed delimitation between Australia and East Timor. This signified Australian de dure recognition of Indonesia’s occupation of East Timor for subsequent negotiations. In 1983, Australian BHP drilled in the Timor Sea and found rich oil deposits, and extraction began in 1986.73
The Hawke Government followed Indonesia’s recognition for gaining seabed wealth by confirming de jure recognition in 1985.74 The Labor Party stated that giving de jure recognition to Indonesia was necessary and effective for East Timor so that Australia could pursue its concerns for HR and economic development in East Timor.75 Moreover, Foreign Minister, Evans argued that Indonesian sovereignty over East Timor was irreversible and did not mean excluding recognition of the rights of the East Timorese.76 Even the tragic issue of the Dili massacre in 1991, the Labor Party supported Indonesia in terms of ratify of the Timor Gap Treaty in the same year.77 This signified that Australia’s approach attached great importance to economic issues rather than supporting HR. Australia’s HR approach, therefore, was negative to East Timor in terms of the negotiations of maritime boundary. Moreover, critics pointed out that Australia’s purpose was to gain benefits in the Timor Sea in return for formal recognition of Indonesia’s military occupation of East Timor in 1975. While Haigh, Australia’s former diplomat, asserts that economic issues in relation to the exploitation of oil and gas in the Timor Sea were not specifically tied in allowing Indonesia’s sovereignty over East Timor, he concedes that economic profits from the
71 Campbell, op.cit., p.59. 72 The Hawke Government confirmed de facto recognition in 1985. 73 The La’s Hamutuk Bulletin ‘Analysing Australian Assistance to East Timor’, op.cit., p.8. 74 Head and Tenenbaum, op.cit., 75 DFAT, East Timor In Transition 1998-2000, op.cit., pp.11-13. 76 Haigh, op.cit., p.59; Burchill, ‘East Timor: Towards Rwanda’, op.cit., 77 Democratic Socialist Party, op.cit.,
128 Timor Sea was a factor in determining the Australian response towards Indonesia.78 There were some questions with regards to Indonesia’s generosity. Many scholars have questioned why Indonesia accepted this 50-50 split and signed the 1989 Timor Gap Treaty. The Timor Gap Treaty was overwhelmingly favourable to Australia, by reflecting the Australian continental shelf argument, rather than the Indonesian median line. Those scholars assumed that Indonesia would be able to argue its median in accordance with the 1982 UNCLOS decision that the median line principle. While the 1982 UNCLOS officially formalised the median line as the principle for agreement and it came into effect in 1994, the median line was generally accepted rather than the shelf continental determination.79 Critics point out that the 1989 Treaty was established at the expense of HR in East Timor by both Indonesia’s illegal occupation 1975, and Australia’s recognition of Indonesia’s invasion of this. 80 Like many lawyers, Jeffrey Smith, a Canadian barrister, condemned the illegality of the Timor Gap Treaty, arguing that this Treaty was expressly not a maritime boundary treaty. 81 Rather, Indonesia’s signature of the Timor Gap Treaty was a gift to Australia as payment for Australia’s complicity in Indonesia’s sovereignty over East Timor. Australia’s approach to the Timor Gap Treaty, including pre-negotiations, illustrated the priority of Australia’s accommodating economic considerations and its trade rule, and ignored HR in East Timor. The Labor Party presented itself to be more pragmatic than idealistic, and its foreign policy towards the maritime boundaries lacked morality towards HR issues for the East Timorese. Other critics assert that the Dili massacre in 1991 was also a result of Australia’s disregard for HR in East Timor because of economic prosperity, as identified in Chapter 2. The Labor Party gave not weight to its violations of East Timor’s human rights. Australia did not blame Indonesia for its HR violation in East Timor, because of Indonesia’s relationship regarding the
78 Haigh, op.cit., p.41. 79 Antunes, op.cit, pp.10-11; The 1982; 60 countries signed. 80 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.4. 81 Jeffrey Smith, ‘The Offshore Jurisdiction of Timor Leste in the Timor Sea’, http://www.etan.org/etanpdf/pdf3//timor_map_12B.pdf [Accessed 20 July 2006].
129 Timor Gap Treaty. At the same year, Australia ratified the Timor Gap Treaty to come into force. Within a month of the Dili massacre, the ALP approved with Indonesia eleven oil production contracts so that Australia would be able to gain oil benefits. 82 The purpose of economic concern of Australia and Indonesia was clear. In 1991, the resistance leader in East Timor, Xanana Gusmão criticised the Timor Gap Treaty, expressing the total betrayal by Australia of the East Timorese. 83 He sent a memo to the Australian Parliament stating: Australia has been an accomplice in the genocide perpetrated by the occupation forces, because the interests which Australia wanted to secure with the annexation of East Timor to Indonesia are so evident. The best proof is the Timor Gap Agreement.84
The Timor Gap Treaty caused East Timor’s indignation. Over this period, Australian governments did not behave in an idealistic way with morality or show any concern for HR in East Timor. Australia’s selective approaches indicated the Australian desire to compromise with Indonesia in order to pursue its national interests. Australia’s political economical considerations ignored a potential HR protection of the East Timorese. Australia’s successful negotiations were established at the cost of East Timor’s HR violations. The 1972 agreement under the Whitlam Government does this, as does the 1989 Timor Gap Treaty under the Hawke Government. In 1996, the Howard Government inherited the Labor Party’s policy towards East Timor, including the maritime boundaries. Critics point out that Australia has exploited the wealth of East Timorese. 85 In Chapter 2, the Howard Government’s pragmatism with emphasising its sovereignty and pursuing self-interests to much greater extent that had the Labor Party, were analysed, and the Government’s narrowing view as lacking morality was
82 Nafeez Mosaddeq Ahmed, ‘Indonesia, East Timor and The Western Powers: A Case Study of The Role of Western Foreign Policy in Conflict Creation and Peace Sabotage’, Media Monitors Network, http://www.mediamonitors.net/mosaddeq25.html [Accessed 10 July 2006]. 83 Xanana Gusmão, 1991 cited Just Comment, ‘Wresting over the Timor Gap’, A publication of The Edmund Rice Centre for Justice and Community Education & The Australian Catholic University, 5(5), 2002, p.1. 84 The La’s Hamutuk Bulletin ‘Analysing Australian Assistance to East Timor’, op.cit., p.8. 85 J. Lamb, ‘Stop stealing East Timor’s oil’, Green Left Weekly, February 9, 2005, http://www.greenleft.au [Accessed 5 May 2005].
130 discussed. In this context, several questions must be raised ; the extent to which the Howard Governments’ pragmatism has been aligned with towards the negotiations of maritime boundary with East Timor as well; and the extent to which its approaches have been exploitative by operating inhumane responses towards East Timor, and formulated by stronger economic globalisation driven by neo-liberal ideology. In this regard, there is a need to investigate the policies of the current Howard Government towards the maritime delimitation of seabed boundaries in the Timor Sea. Details of the implementation of the negotiations of maritime boundaries and other issues by the current government will follow.
2) Approaches of the Howard Government
When John Howard came in power in 1996, the negotiations of maritime boundaries had been substantially completed by the Labor Party. On 14 March 1997, Australia and Indonesia signed the 1997 Delimitation Treaty, covering the water column boundary across the entire Timor Sea (Refer to Map 3.1), delimiting the Exclusive Economic Zone (EEZ) boundary between East Timor and Australia.86 Under this treaty, Indonesia’s argument, the medial line was allowed in fisheries boundaries again. 87 However, Australia’s continental shelf boundary strictly applied and it did not involve the seabed resources. 88 The 1997 Treaty concluded the bilateral
86 King, ‘The Timor Gap, 1972-2002’, op.cit., p.27; The 1997 Treaty between the government of Australia and the government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries; Foreign ministers, Alexander Downer in Australia and Ali Altas in Indonesia signed in Perth, Australia; The premise that underlay for the conclusion was that Australia believed that East Timor would not gain independence (Geoffrey A. McKee, ‘The new Timor Gap’, Inside Indonesia, No.62 Apr-Jun 2000, http://www.canb.auug.org.au/~wildwood/earlymckee.htm [Accessed 5 June 2006]) . 87 (1997) 36 ILM 2053; Bateman and Rothwell, op.cit., p.3 ; According to Campbell, it had three principle elements of the 1997 Treaty; 1) it delimits the EEZ and continental shelf between the Australian Territory of Christmas Island and the Indonesian Island of Java, 2) it complete the seabed boundary between Australia and Indonesia west of the seabed line established under the 1872 Seabed Agreement, and 3) it would establish an EEZ boundary in the Timor and Frafura Seas between the coastlines of Australia and Indonesia (Campbell, op.cit., p.73). 88 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9; While the Howard Government triumphed with a successful conclusion of the 1997 Treaty, it also brought some criticism. In this regard, the delimitations were imprecise and the 1997
131 maritime boundary with Indonesia that commenced in the early 1970s. However, as a matter of fact, this treaty was never ratified by the termination of Indonesia’s occupation over East Timor. 89
Australian approaches during transition periods.
Following the East Timorese referendum for independence and Indonesia’s official withdrawing from East Timor, the 1989 Timor Gap Treaty became invalid. Australia had to face a new agreement with East Timor. When, in 1995, the ICJ dismissed the Portugal arguments against the Timor Gap Treaty, the ICJ pointed out that the Timor Gap Treaty was the result of a provisional arrangement. 90 In addition, the ICJ warned Australia that the Treaty itself would not guarantee a future agreement with Indonesia, if East Timor were to become independent. 91 Thus, the first task for the Howard Government regarding the seabed delimitation was to conduct negotiations. In October 2000, Australia began to negotiate with the UN Transitional Administration in East Timor (UNTAET) and East Timor’s representatives. 92 The UNTAET was established in October 1999 and was empowered to enter into international agreements on behalf of the East Timoreses. 93 In East Timor, a National
Treaty created a complex and conflicting maritime boundary system because of the overlapping seabed/water column jurisdiction, indicating an entire different view with defined by the 1970s Treaty (Bateman and Rothwell, op.cit., p.6). 89 Smith, ‘The Offshore Jurisdiction of Timor Leste in the Timor Sea’, op.cit., ; The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.7. 90 The provisional arrangement would to remain until 2031 in accordance with Article 83(3) of the 1982 UNCLOS (Campbell, op.cit., p.60). 91 Catry, op.cit., 92 King, ‘The Timor Gap, 1972-2002’, op.cit., p.35. 93 The Resolution 1272;The UN Security Council passed the Resolution 1727 on 25 October 1999;The UNTAET was constructed in 1999 to establish a sovereign state for East Timorese and its future, however, the role of the UNTAET was criticised regarding substantial help for establishing new state of East Timor. Critics pointed out that the UNTAET preceded that negotiation of maritime boundary with Australia rather than providing the foundation for East Timor’s transition to an independent state (Daniel Fitzpatrick, ‘UNTAET and East Timor: the Current Legal and Institutional Context’ Rothwell and Tsamenyi (eds), op.cit., p.22); An exchange of letter between the Indonesian Minister for Foreign Affairs, Dr. Alwi Shihab, and the Australian Minister for Foreign Affairs, Alexander Downer, on May 2000, made for disengagement of Indonesia from the Timor Gap (Campbell, op.cit., p.71); Fitzpatrick, op.cit., pp.16-23; An Exchange of Notes Constituting between Australia and the UNITAET recognised that the East Timor mainland including Atauro Island and the Enclave of Ambino and the
132 Consultative Council (NCC) was established to determine policy and assist the UNTAET during the transitional period. In July 2000, a Cabinet of the East Timor Transitional Administration (ETTA) consisting of four East Timorese and four UNTAET members was also established.94 Australia’s concern was whether or not the UNTAET would continue the Timor Gap Treaty, which was overwhelmingly favourable to Australia. In February 2000, Australia and the UNTAET conducted an interim Exchange of Notes and a Memorandum of Understanding (MOU) governing transitional arrangements for the Timor Gap, which described certain practical transitional arrangements of the Timor Gap Authority such as half share revenue. 95 However, this arrangement indicated neither a final delimitation between Australia and East Timor nor the areas outside of the ZOC. 96 In October 2000, arrangements began for the negotiations regarding the division of Timor Sea resources. Australia developed and implemented its strategy for ensuring the continuation of the Timor Gap Treaty, and encouraged the UNTAET to formally accept the rights of Indonesia under the Timor Gap Treaty.97 Nevertheless, the UNTAET and the ETTA recognised the Timor Gap Treaty as invalided, based on two factors. One was the breaching of international law by Indonesia’s illegal occupation of East Timor.98 A Minister for Political Affairs of the UNTAET, Peter Galbraith asserted the Timor Gap Treaty was null and void. Legal view suggests that the Timor Gap Treaty is not a boundary treaty as it breaches have Article 11 and 12 of the 1978 Vienna Convention on the Succession of States.99 The UNTAET, therefore, argued that a new agreement was necessary between the UNTAET and Australia. The other factor, concerning East Timor’s interests, was critical, because prospective hydrocarbon resources were located in ZOC A on the East Timor side of national median line. However, the lateral boundaries of ZOC A were adjacent territorial sea and superjacent airspace(Robin Warner, ‘Navigation Rights Off East Timor’, in Rothwell and Tsamenyi (eds), op.cit., p.145). 94 King, ‘The Timor Gap, 1972-2002’, op.cit., p.29. 95 Article 31(1); It provides for the continuity of the terms of the Timor Gap Treaty (Antunes, op.cit., p.12). 96 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9. 97 King, ‘The Timor Gap, 1972-2002’, op.cit., p.29. 98 Campbell, op.cit. p.67. 99 Antunes, op.cit. p.12 and 24 ; The UN did not recognise the validity of the integration of East Timor in 1975 into Indonesia.
133 drawn to exclude the Laminaria-Corallina field to the west as well as 80 per cent of the Greater Sunrise field to the east.100(Refer to Map 3.2). These fields have lucrative rich oil and gas resources. Despite the UNCLOS endorses of East Timor’s sole sovereignty over the majority of the oil and gas reserves in the ZOC A, their rightful entitlement was excluded.101 Thus, the UNTAET and East Timor recognised that the Timor Gap Treaty was regarded as being inconsistency with the 1982 UNCLOS and refused to succeed the rights of Indonesia.102 On 5 July 2001, the UNTAET, Peter Galbraith, East Timor, a member of the ETTA, Mari Alkatiri, and Australian Prime Minister, John Howard signed the Timor Sea Arrangement (an interim agreement). The 2000 MOU was replaced with the 2001 Memorandum of Understanding. Under the Timor Sea Arrangement, the ZOC is called the Joint Petroleum Development Area (JPDA), and a temporary division has been established. The administrative and management structure were also established, comprising the Designated Authority, the Joint Commission and the Ministerial Council.103 Oil and gas revenues would be divided into 90 per cent for East Timor and 10 per cent for Australia from the JPDA and would expire when permanent boundaries were established.104 It was estimated that at least US$ 4 or 5 billion in revenue would be available for East Timor. Simultaneously, Australia agreed to provide an annual grant of AU$8 million to assist East Timor. Australia recognised that it gave a minimum of $4 to 5 billion in revenue to the fledging nation of East Timor. 105 Since this time, Australia has emphasised its great generosity in terms of the 90:10 revenue for East Timor’s favour, as compared with the 50:50 share revenue with Indonesia. However, the 90:10 revenue division applied entirely to the north of the mid-point or ‘median line’ between Australian and East Timor. Its southern
100 Carty, op.cit, 101 Memorandum of Understanding, cited Souster, op.cit., pp. 946-947. 102 Campbell, op.cit., p.64. 103 Antunes, op.cit., p.15. 104 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9; East Timor Action Network, ‘Plain facts about Australia and East Timor’s Maritime Boundary’, March 2005, http://www.etan.org/etanpdf/pdf3/boundaries2 [Accessed 20 July 2005]. 105 Souster, op.cit.,p.945.
134 border was applied to the halfway point between the two countries.106 (Refer to Map 3.3.) Before the negotiation during 2000, East Timor confirmed to apply a median line determination for the negotiation of maritime boundaries in accordance with the 1982 UNCLOS. As Triggs points out that the jurisdiction of the ICJ, Article 36(2) would be favourable to East Timor,107 a number of legal experts of the Law of the Sea confirm that the 1982 UNCLOS would be favourable to East Timor. The UNTAET also supported East Timor’s position, stating that it ”should have the same benefit as if there were a maritime delimitation.” 108 Australia’s choice was to refuse the discussion with regard to out the maritime boundary, and merely offered the production revenues.109 East Timor, however, decided to enter into an interim arrangement for revenue sharing, first, in order to gain immediate benefit from petroleum operations.110 Deciding the maritime boundaries nevertheless seemed to take too long. Revenue was necessary for the establishment of state framework. East Timor had to start with a terrible disadvantage after the Indonesia army had destroyed about 70 per cent of its physical infrastructure. Given such turmoil, the 90 per cent of royalties could be expected to establish a new state. The royalties guaranteed $100 million revenue over 20 years and this revenue would help the new state. The new beginning of East Timor as an independent state experienced many difficulties and needed substantial reconstructions and basic economic development.111 Problems included the displacement of the population and a wide range of issues relating to the return of refugees. Approximately 200,000 to 300,000 refugees had fled prior to independence.112 A budget deficit was a serious problem. In 2002, the state budget of East Timor was only $94 per head of population, which was inadequate to meet the social economic needs of life,
106 Bugalski, op.cit., p.290. 107 Triggs, ‘Commercial Risks of Investment In The Timor Gap Treaty Zone Of Cooperation Area A ’, op.cit., pp. 134-135. 108 King, ‘The Timor Gap, 1972-2002’, op.cit., pp.33-35. 109 Ray Brindal, 2000 cited King, ‘The Timor Gap, 1972-2002’, op.cit., p.34. 110 The La’o Hamutuk Bulletin, Special Independence Issue: East Timor after UNTAET’, 3(4), May 2002, p.5. 111 Oxform Australia, ‘Timor-Laste’, http://www.oxfam.org.au/world/asia/east_timor/ [Accessed 10 October 2005]. 112 Fox, op.cit., p.35.
135 such as health, education, housing and other critical needs.113 Additionally, East Timor had to rely on aid money, especially from Australia, including security protections. Despite East Timor was aware to entitle 100 per cent revenue from the area, East Timor had to give up for its arguments for an immediate revenues. This is a reason for President, Gusmão’s statement, “East Timor is in fact ‘giving 10 per cent of what belongs to [it] Australia’” 114 East Timor mentioned that East Timor gave up its 10 per cent share in exchange of Australia’s security protections for it.115
Australia’s approach to East Timor – Australia’s economic and political strategy
East Timor, the Democratic Republic of Timor-Leste, located in South-East Asia, Northwest of Australia in the Lesser Sunda Islands at the Eastern of the Indonesia archipelago, has a tragic history of occupation for more than 400 years by several countries; Portugal, Japan and Indonesia.116 Between 1999 and 2002, the UN Transitional Administration governed East Timor to assist East Timor’s transition toward a state, and East Timor finally became an independent state in May 2002. On 27th September 2002, East Timor also became a member of the UN.117 The Howard Government, in its approach, has been accused of bullying a new small country in their negotiations regarding the maritime boundaries. On March 21st, 2002, Australia officially withdrew from the ICJ’s jurisdiction for resolving maritime boundary disputes and rejected the International Tribunal in the Law of the Sea (ITLOS) for the Law of the Sea.118 It has to be recognised
113 Catry, op.cit., 114 Bugalski, op.cit., p.290. 115 Anderson, ‘Aid, Trade and Oil’, op.cit., p.121; Having discussed in Chapter 2, Australia has emphasised security and policing in East Timor since 1999. 116 Aditjondro, 1994, cited Fitzpatrick, op.cit., p.16; Oxform Australia, op,cit., ; Its area is 15,007 sq km. 117 CIA, ‘East Timor’, The World Factbook, http://www.cia.gov/cia/publications/factbook/goes/tt.html [Accessed 19/06/2005] ; The Ministry of Foreign Affairs of Japan, ‘East Timor and relationship with Japan’, http://www.mofa.go.jp/mofaj/area/easttimor/kankei.html [Accessed 19 June 2005]. 118 Antunes, op.cit., p.17; Australia applied two issue about declarations on the question of jurisdiction, Articles 287 and 298 of the 1982 UNCLOS Sea and ‘optional clause’ of Article 36 of the Statue of the ICJ.
136 that the Australia’s action considered were made just two months before East Timor became a nation. This means that East Timor loses its legal right to appeal to the ICJ against Australia to help in the negotiation of maritime boundaries under international law. This refusal by Australia was memorably condemned by Mr. Mari, as being an “unfriendly act”.119 Critic points out that the UNCLOS favours East Timor than Australia, and Australia would consequently lose a degree of control over maritime delimitation if the matter were placed in the hands of a court. Mr. Galbraith of the UNTAET actually announced that an independent country of East Timor would bring in the ICJ to seek maritime delimitation.120 The maritime boundaries between Australia and East Timor have reflected the maximum possible degrees of the state’s claim. East Timor claims the median line that splits into the middle of the 375 miles of sea.121 The 1982 UNCLOS established the EEZ, extending not more than 200 nautical miles measured from territorial sea baseline.122 The UNCLOS shows a territorial sea with a maximum breadth of 12 nautical miles measured from a territorial sea baseline around the low water line of the East Timor mainland, the Atauro Island and the Ambino enclave.123 East Timor is therefore able to claim total 22,900 nautical miles in light of the lines of equidistance.124 In 2002, the Maritime Zones Act that claims East Timor’s sovereign maritime zones in a 200 nautical mile radius from the coastline was passed. 125 The Timor coastline is closer to it rather than the
119 Asia Pacific 2002, cited King, ‘The Timor Gap, 1972-2002’, op.cit., p.44; Mari Alkatiri expressed that; “No, I think the International court is really out of the question. Australia has already withdrawn from the jurisdiction of the International Court. I classified this at the time as an unfriendly act form the Australian government? Now I’m realising that this act is linked to the maritime boundaries. I hope not. But I’m realising that this is really linked to the maritime boundaries – a way to tighten [tie] our hands. We are looking to apply international law in the zone and we would like, really to have friendly discussions, friendly negotiations between the two friendly countries … I still have a lot of instruments to be used even in the treaty itself. I think the signing of this treaty was the right move”. 120 King, King, ‘The Timor Gap, 1972-2002’, op.cit., p.35. 121 Prescott, op.cit., p.81. 122 Article 74(1) and 83(1), Prescott, op.cit., p.80 ; Scott, op.cit., p.280. 123 UNCLOS, Article 3 cited Warner, op.cit., p.151. 124 The Geographer, 1972 cited Prescott, op.cit., p.104. 125 Australian Broadcasting Corporation, ‘Timor Gap negotiations’, http://www.abc.net.au/ra.news/timelines/s1408008_to.htm [Accessed 5 June 2006]; Bugalski, op.cit., p.292.
137 Australian coast. The area between the northwest coast of Australia and East Timor is less than 400 nautical miles.126 On the other hand, Australia argues that this area is unique. Australia has kept maintaining its claim to a continental shelf, extending to the middle of the Timor Trough, so that any assets within the JPDA are subject to Australian jurisdiction. 127 In December 2000, Australia reaffirmed its position since William MacMahon’s statements that support the continental shelf argument. 128 Australia also insists on the Timor Gap Treaty (Transitional Arrangements) Act 2000.129 Australia claims a continental shelf in terms of the UNCLOS. Article 76 of the UNCLOS provides that the coastal states have exclusive control over the natural resources for exploration and exploitation. Article 76 (1) states: The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
It seems very difficult to apply international principles for continental shelf delimitation between two states, because the international principles for continental shelf delimitation between opposite states are vague in this area. When the Timor Gap was created in 1972, the continental shelf argument was dominant for the resolution of maritime boundaries. The 1982 UNCLOS, however, supports the median line in principle as a contemporary geometrical solution. Thus, Australia’s persisting in the continental shelf argument presents Australia’s refusal to abide of international law. It is important to note that Australia’s policy for economic priority was demonstrated in this context. Australia was afraid to lose an economic opportunity for investment in East Timor. If the ICJ’s decision were to
126 Campbell, op.cit., pp.56-57. 127 Campbell, op.cit., pp.56-57; Tom Dusevic, ‘Hands Off My Petroleum!’, Time, May 10, 2004, p.44; BBC News, ‘Australia ripped over East Timor oil’, op.cit., 128 King, ‘The Timor Gap, 1972-2002’, op.cit., pp.35-36. 129 Campbell, op.cit., p.69.
138 establish East Timor’s sovereignty in ZOC A, Australia would lose an economic opportunity because the prospective revenue from ZOC A was regarded as being quiet high in volume.130 Downer’s colleague, Science and Resources Minister, Nick Minchin, asserted that a dispute on the ICJ would frighten away billions of dollars of investment.131 Australia’s continental shelf argument presents an effective political strategy to establish not only Australia’s sovereignty in the Timor Sea but also economic advantage. Moreover, Australia’s first assistant secretary at the international law office of the Attorney General, Campbell explains the effectiveness of future maritime arrangement on the basis of bilateral or regional agreements, rather than a dispute settlement procedure in the ICJ. Campbell states: 1) Maritime arrangement provides a more secure basis for future co- operation in the exploration and exploitation of the areas,
2) Lengthy international litigation would not provide a stable basis for continued investment in the areas in question,
3) States have a possibility to lose their power over maritime delimitation when the matter is brought in a court. The court decision might not be satisfied some or all the parties.132
Having stated, the Howard Government has demonstrated its preference for facilitating of bilateral and regional agreements since 1997, given under economic globalisation, bilateral or regional agreements have been applied. Howard has applied bilateral negotiation to East Timor as well. Australia’s withdrawing from the ICJ’s jurisdiction is regarded as a political tactic to protect Australia’s interests by facilitating bilateral negotiation, thereby allowing the maritime negotiation to proceed in an Australian way. This Australia’s pragmatic diplomacy has been problematic. Australia’s approach to prefer bilateral negotiations indicates a sense of peril. It is probably true that decisions by the ICJ are neither always clears, nor do they satisfy all parties. International law, however, exists as an important system of interrelated rules and principles, and its concepts are important in world politics. So the ICJ plays an important role in the system of international law.
130 Campbell, op.cit., p.137. 131 Head, op.cit., 132 Campbell, op.cit., pp.55-56.
139 It could be argued that Australia’s refusal to negotiate a maritime boundary under the ICJ indicates that Australia does not adhere to international principles. This is also indicative of Australia’s selective approach for its own national interests, such as the Howard Government withdrawing from some UN human rights treaties. By Australia’s withdrawal from the ICJ jurisdiction, East Timor’s choice is that East Timor has to only negotiate directly with Australia.133 Critics point out that a bilateral negotiation between Australia and East Timor would create an unequal negotiation process. Australia’s practical diplomacy, with its superior size, wealth, experience and options, would intimidate East Timor and greatly advantage Australia. 134 Moreover, the bilateral negotiation between Australia and East Timor would undermine HR in East Timor. Donnelly argues that: Bilateral relations seem to provide a much greater range of opportunities and dangers – for international action on behalf of human rights. It is very difficult to produce examples in which multilateral action has had a similar influence, whether for good or for evil, on human rights conditions. States, particularly powerful states, have more resources at their disposal than international organizations do. States control, and thus can manipulate for the purpose of their human rights policies, a cess to markets, resources, and foreign aid.135
These Australia’s approaches demonstrate Australia’s unfaithful attitude towards East Timor. The new East Timor commenced its statehood in an impoverished condition. In 2002, The UN Human Develop Program reported that East Timor’s annual per capita GDP was US$478, which made it one of the 20 poorest countries in the world, alongside Rwanda and Angola.136 On the other hand, Australia’s GDP per capita in 2002 showed US$28,260, which ranked it 11th out of 177 countries.137 Australia has also been ranked amongst
133 Anderson, ‘Aid, Trade and Oil’, op.cit., p.121. 134 The La’o Hamutuk Bulletin, ‘CMATS Treaty with Australia’, op.cit., p.2. 135 Donnelly, op.cit., p.23. 136 Head and Tenenbaum, op.cit., 137 World Bank, 2005, cited Globalist, ‘Australia’, http://globalis.gvu.unu.edu/indicator_detail.cfm?IndicatorID=19&Country=AU [Accessed 5 July 2006].
140 high-income OECD countries since the 1990s and has had responsibilities in terms of aid or debt relief towards developing countries.138 East Timor, on the other hand, has no experience as a petroleum producing nation, in fact quite the contrary. It therefore has a limited capability to persuade Australia during negotiations. Many other changes, such as financial terms or conditions, might be possible if Australia were willing to renegotiate in accordance with international law. Moreover, in order to pursue its arguments in accordance with the UNCLOS, East Timor has to have negotiations not only with Australia but also Indonesia. East Timor would have difficulties. A French, journalist, Jean-Pierre Catry, criticises Australia, stating that, “Without rule, there remains a world where the weak are victims of the strong.” 139 Australia’s favourable bilateral agreements terrifies East Timor, presenting Howard’s agenda of economic globalisation seemingly regardless of the consequences for a small developing country.
The Timor Sea Treaty
Within three months of Australia’s withdrawal from the ICJ’s jurisdiction, on May 20, with an officially independence of East Timor, Australia started to negotiate with the new nation. Simultaneously, Australian Prime Minister, John Howard and East Timor, Prime Minister, Mari Alkatiri signed the Timor Sea Treaty (TST). The Timor Sea Treaty replaced the 2001 MOU and substantial agreement was reached, with both prime ministers agreeing to work for an expeditious ratification of the treaty. This Treaty created JPDA for joint development, covering 75,000 sq km in the Timor Sea, and it was confirmed that the revenue share from the JDPA would be distributed on the basis of 90 per cent to East Timor and 10 per cent to Australia.140 The TST is an interim
138 CIA, ‘Australia’, The World Factbook, http://www.cia.gov/cia/publications/factbook/goes/tt.html [Accessed 15 May 2006]. 139 Catry, op.cit., 140 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.10.
141 arrangement and provides for 30-year duration unless permanent boundaries are established.141 John Howard stated that, “The treaty was an important demonstration of the good faith between Australia and the newly emerging country of East Timor’, and “we have been very fair, extremely fair.”142 Whenever he talks about the negotiation of maritime boundaries with East Timor, he often repeats “Australia’s immense generosity”. Australia also asserted that East Timor would gain in excess of US$15 billion in revenue from the Bayu-Undan project alone through the new arrangement of the TST (although the East Timor Government estimated the revenue at US$2.5 to 3.0 billion).143 Yet Australia has still gained profits from the infrastructure for processing and exporting gas in Darwin, and the jobs associated with it and from the remaining 10 per cent (approximately AU$ 2 billion).144 Immediately, in May 2002, East Timorese civil and community groups and opposition political parties protested about the validity of previous MOU which was replaced to the Timor Gap Treaty. They questioned two points; to what extent the UNTAET had authority to establish agreements for the East Timorese on the grounds that the negotiation of maritime boundaries was not normally a bilateral negotiation between sovereign states. The other claim questioned was the reliability of the MOU, based on the fact that the three lawyers who were involved in the MOU were not experts of the Law of the Sea.145 In addition, the MOU did not clearly address areas outside of the JPDA, as the 2000 Exchange Notes had, but it just allowed continued exploitation in
141 Article 22, Timor Sea Treaty between the Government of East Timor and the Government of Australia, Timor Sea Treaty ; The Treaty also decided about the Greater Sunrise field where was the largest deposit area locates 20.1% within the JDPA and 79.9% to East Timorese zone; The preamble of the treaty states that, “in the absence of delimitation, the Further obligation for States to make every effort, in a spirit of understanding and co-operation, to enter into provisional arrangements of a practical nature which do not prejudice a final determination of the seabed delimitation”. 142 Mark Forbes, ‘Australia, East Timor reach agreement on oil and gas fields’, THE AGE, May 18, 2002, http://www.theage.com.au/articles/2002/05/17/1021544069183.html [Accessed 3 October 2005]. 143 East Timor Action Network, op.cit.,; DFAT, ‘Australia-East Timor Maritime Arrangements’, http://www.dfat.gov.au/geo/east_timor/fs_maritime_arrangements.html [Accessed 15 May 2006]. 144 East Timor Action Network, op.cit., ; Anderson, ‘Aid, Trade and Oil’, op.cit., p.122. 145 Fitzpatrick, op.cit., p.28.
142 JPDA and did not address in detail any future considerations regarding East Timor. Moreover, it is important to note that the 90 per cent sharing of royalties is applied only within the JPDA. East Timor’s EEZ outside of the JPDA is not addressed in the TST. Australia and East Timor had two unsolved gas fields, the Greater Sunrise, which is partly in the JPDA and the Laminaria-Corallina, which is outside of the JPDA. These two fields are regarded as East Timor’s EEZ rather than Australia under the 1982 UNCLOS (although Australia argues that this the EEZ of Australia).146 Moreover, the TST did not immediately come into force. In particular, the TST left a difficult problem with regard to the Greater Sunrise field. Details regarding the dispute of the Greater Sunrise are discussed in the next section.
Current controversial areas in the Timor Sea and Australia’s approach
Australia’s approaches with regards to the negotiations of maritime with East Timor, have demonstrated Australia’s pragmatic responses on the grounds that Australia’s continuing ignore East Timor’s legal rights in the Timor Sea. East Timor’s Prime Minister, Alkatiri accuses Australia of unlawfully exploiting the resources of the sea between Australia and East. Moreover, James Ensor, of Oxfarm, comments, “Australia is not displaying good faith in its current negotiations with our neighbour”.147 Currently, Australia and East Timor are continuing to negotiate a maritime boundary. Between Australia and East Timor, there are four controversial oil and gas fields; 1) Elang-Kakatua, 2) Bayu-Undan, 3) Greater Sunrise and 4) Laminari-Corallina. The below map shows disputable maritime boundaries between Australia and East Timor
146 DFAT, ‘Australia-East Timor Maritime Arrangements’, op.cit., 147 BBC News, ‘Australia ripped over E Timor oil’, op.cit.,
143 Map 3.3: Disputable maritime boundary 148
QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.
1) Elang-Kakatua. In 1994, Elang-Kakatua was discovered in ZOC A. The Consortium, including Australian BHP and its partners, Santos, Petroz and Inpex Sahau began production in July 1998 at levels that produces 32,500 parrels per day. It was expected to yield about 30 billion barrel of oil worth $600 million over four or fiver years.149 The Elang-Kakatua field actually had a production value of around $250 million, returning $5 million in revenue to Australia and Indonesia.150 By 2003, however, approximately 90 per cent of its oils had already been extracted. The TST ensures that East Timor currently receives a share of 90 per cent.151
2) Bayu-Undan. In 1995, Bayu-Undan was also discovered in also ZOC A. It holds about 900 billion barrels of oil and rich natural gas liquids, which were supposed to produce more than 300 million barrels of condensates and liquid petroleum gas (LPG) and 85 billion cubic metres of gas. 152 In 1999, an Australian-Japanese-US-British consortium, headed by US oil giant Phillips Petroleum, invested US$1.5 billion as the first stage of the project that brought
148 Oxform, Australia, op.cit., 149 Karen Talbot, ‘Oil and other considerations’, http://www.pww.org/past-weeks- 1999/The%20East%Timor%struggle.htm [Accessed 5 August 2006]; Prescott, op.cit., p.92. 150 Payne 1999 cited R. J. King, ‘The Timor Gap, 1972-2002’, op.cit., p.28. 151 Uniting International Mission, ‘The Timor Gap – an article’, http://www.uim.uca.org.au/uim/community-and-country-profiles/by-alpha/asia [Accessed 3 August 2005]. 152 Prescott, op.cit., p.92; Talbot, op.cit.,
144 oil on line in 2004, committing to a cost of $1 billion to transport the gas to Darwin in the Northern Territory of Australia from 2006. The TST agreement ensures that East Timor has gained more than $6 million every month. Revenues of approximately US$2.5 to 3 billion will go to East Timor over 20 years.153
3) Greater Sunrise. The Greater Sunrise was found in 1974. Only 20.1 per cent of the Great Sunrise is located in the JPDA, whilst 79.9 per cent is located outside of the JPDA. 154 The distribution of the field comprised about 8.3 trillion cubic feet of natural gas, with the Greater Sunrise having more than twice the resources of Bayu-Undan and expected to provide revenue of US$16 billion.155 With regards to the Greater Sunrise fields, Australia has abused its practical diplomacy and superior power. When the TST was signed in 2002, an annex in relation to the International Utilization Agreement (IUA) of the Greater Sunrise was involved. The IUA was a framework for the exploitation of this field and sharing of revenue by governments, expressly indicating that 82 per cent of revenue would go to Australia, while East Timor would receive 18 per cent. It was expected this would be signed in March 2003 (although it was not ratified because of unfair revenue sharing).156 Australia laid claim to US$30 of that US$38 billion.157 Whilst Australia and Australian oil company, Woodside, producer of the Great Sunrise field, expected that the IUA would reach an agreement by the end of 2002, East Timor disagreed with Australia’s sovereignty over territory outside the JPDA on the grounds that the UNCLOS
153 Mike Head, ‘Timor Gap dispute highlights motives behind Australian intervention’, October 25, 2000, World Socialist Web Site, op.cit., [Accessed 15 January 2005]; Anderson, ‘Aid, Trade and Oil’, op.cit., p.122; The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9; Action in Solidarity with Asia and the Pacific, ‘Statement on the East Timor-Australia maritime agreement’, January 15, 2006, http://www.asio-pacific-action.org/statements/ [Accessed 10 July 2006]. 154 DFAT, ‘Australia-East Timor Maritime Arrangements’, op.cit., 155 Uniting International Mission, op.cit., 156 Upstream: the petroleum activities and facilities prior t the ‘valuation point’ as defined in the Sunrise IUA (The CMATS, Article 1); Downstream: Refining, liquefying or processing the oil and gas (The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.10). 157 McKee 2002, cited Anderson, ‘Aid, Trade and Oil’, op.cit., p.123.
145 supports East Timor, and argued the IUA would put forward a future settlement.158 East Timor is confident of East Timor’s rightful entitlement in the Greater Sunrise. In March 2002, PetroTimor in East Timor held seminars in Dili regarding the Timor Gap. Experts of the Law of the Sea such as Jeffery Smith and others confirmed East Timor’s 100 per cent entitlement of Sunrise fields. 159 It could expect to receive 68 per cent of the total oil resources, including 100 per cent of those closer to East Timor.160 Thus, East Timor did not ratify the IUA until 2005, although Australia had insisted on it because of the deposits lying in an area of overlapping claims under East Timor’s domestic jurisdiction, whereby Australia hoped to conclude the IUA before 31 December 2002.161 Exploration of the oils deposit is not allowed until the treaty is ratified by both states. During November and December 2002, the oil companies put pressure on the two states, expressing that an indefinite delay of agreement would endanger the oil and gas business in both the Great Sunrise and Bayu- Undan. With the current limited arrangement, oil companies cannot undertake transactions to maximise their profits. Australian Woodside hoped to secure an early agreement of the IUA, and Woodside put pressure on the Howard Government to conclude an early agreement of the IUA. They decided to hold the TST as a hostage for Australia’s favourable situation.162 The global oil and gas companies, who stand to profit to the tune of billions of dollars from the huge reserves beneath the Timor Sea, are neo-liberal agents. Those oil companies have generated huge benefits for Australia. In November 2002, Australia refused to sign, arguing that it would not ratify the TST until February 2003 or later. 163 The Howard Government weighted Bayu-Undan with the Great Sunrise. Australia did not consider Bayu-
158 The La’o Hamutuk Bulletin, ‘Double issue foci: Timor Gap oil and Brazilian Aid to East Timor’, 4(3)-(4), August 2003, p.7. 159 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.8 ; Mckee, 2002, cited Anderson, ‘Aid, Trade and Oil’, op.cit, p.123. 160 J. Roberts, ‘East Timor calls on Australia to stop exploiting disputed oil field’, World Socialist Web, op.cit., [Accessed 15 August 2005]; Save East Timor, 2003, http://www.saveeasttimor.org/ [Accessed 10 November 2005]. 161 Parliament to the Commonwealth of Australia, Report 49, 2002, cited Antunes, op.cit., p.18. 162 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.4. 163 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.4.
146 Undan because of just 10 per cent of revenue, and yet the revenue from the Sunrise upstream would be worth more than ten times as much as Bayu-Undan. Australia also had another sources of income beside Bayu-Undan. 164 The situation was made worse for East Timor. In December 2002, a main operator in the Bayu-Undan product, Conoco-Phillips, claimed that the Japanese customer for Bayu-Undan might cancel their contract if the TST were not ratified by 11 March 2003. East Timor was afraid to lose the Bayu-Undan project, and finally agreed to sign the TST associated with the IUA, because, more than US$3 billion, which was 20 times as much as Elang-Kakutua was estimated for East Timor.165 East Timor ratified the TST in December 2002, so that it could start to explore the oil and gas in Bayu-Undan in order to gain royalties immediately. Australia and East Timor signed the Sunrise IUA on March 6th, 2003, and Australia then ratified the TST on the same day, which has now come into force.166 Australia’s approach was accused of blackmail for these negotiations in the ‘Australian way’, associated with corporate interests that increase profit for national interests. While Australia ratified the Sunrise IUA in March 2004, East Timor has not ratified it, because of East Timor’s argument and unfair sharing of royalties. The re-negotiation of the Great Sunrise was inevitable between Australia and East Timor. The bilateral negotiations continued until the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) reached agreement in 2006. East Timor expected Australia to concede a large share of revenue for East Timor. There have been clear that Australia’s grossly unfair oil deals with Australia’s conditionality. The process for the negotiation of the Greater Sunrise gas field did not progress as East Timor had requested. While East Timor was keen to have meetings with Australia on a monthly basis, the Howard Government hesitated, wanting to have them only semi-annually, stating their reasons as lack of time and personnel.167
164 The La’o Hamutuku Bulletin ‘Double issue foci’ op.cit., p.6. 165 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9. 166 The La’o Hamutuku Bulletin, ‘Double issue foci’, op.cit., p.2. 167 Roberts, ‘East Timor calls on Australia to stop exploiting disputed oil field’, op.cit. ; Catry, op.cit.,
147 In April 2004, the Howard Government took the first step to re-start the negotiations on the Greater Sunrise gas field. In this meeting, Foreign Ministers, Jose Ramos-Horta and Downer aimed to reach a ‘creative solution’. 168 However, Australia suggested a one-off payment of $3 to $4 billion in exchange for East Timor giving up its claims to the resource of the Timor Sea. This one-off payment was regarded as about half of what East Timor is rightfully entitled to. 169 Australia was critical of East Timor, explaining that “East Timor made unreasonable demands of their sovereignty and the natural of the Greater Sunrise project”.170 In January 2006, Australia and East Timor signed the CMATS. The CMATS incorporates and modifies the 2002 TST and the IUA. Under the CMATS, the revenue share would be half to Australia and half to East Timor. 171 Yet an allocation of the down stream revenue is not being determined. A final maritime boundary was deferred for 40 years – the expected life of the Greater Sunrise field. 172 East Timor’s situation became positive as the share revenue increased from 18 per cent to 50 per cent, meaning that East Timor’s revenue would be increased to US$10 billion from US$4 billion. 173 The CMATS emphasises a use of bilateral negotiation. Article 4(5) of the CMATS states that both states agree not to bring to any international organization matters directly or indirectly in relevant to maritime boundaries in the Timor Sea. However, the CMATS does not conclude a disputable maritime boundary like the Timor Gap Treaty. Critics occurred as soon as the CMATS was announced, arguing that ‘another sad chapter of Australian foreign policy betrayal’. The opponents pointed out that East Timor’s rightful median line argument is excluded again on the grounds that Article 4.2 of the CMATS’s statement that East Timor
168 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.5. 169 Lamb, op.cit., 170 Energy Intelligence Group, ‘LNG project at risk at Timor Gap talks collapse’, Energy Compass, London, October 2004, http://www.proquest.umi.com.ezproxy.uow.edu.au:2048/pqdweb? [Accessed 15 June 2005]. 171 Article 5 of the CMATS; Australian and East Timor will receive half of the ‘upstream’ revenue from the Greater Sunrise. 172 DFAT, ‘Australia-East Timor Maritime Arrangement’, op.cit.,; East Timor can exercise water-column (fisheries) jurisdiction within the JPDA. 173 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia, op.cit., p.2; DFAT, ‘Australia-East Timor Maritime Arrangements’, op.cit.,
148 accepts of Australian petroleum activities in formerly disputed areas outside of the JPDA.174
4) Laminaria-Corallina. In October 1994, Australian Woodside struck oil in the Laminaria-Corallina. Woodside, BHP Billiton and Shell started to produce oil in 1999. The North Australian Gas Venture of Woodside Petroleum and royal Dutch Shell are involved in vast gas reserves.175 At the start up, output averaged 142,500 barrels a day, peaking at up to 180,000 barrels a day, before declining to 50,000 barrels a day.176 It was predicted that this field would be exhausted by 2005. In 2004, 75 per cent of its resources had been exhausted.177 Under the CMATS, East Timor has no entitlement to the Laminaria-Corallina field, and consequently all its revenues goes to Australia.178 Australia and East Timor are far from reaching a comprehensive and workable solution.
There is an increasing accusation that Australia has stolen East Timor’s wealth. Australian already gains $6 million a year in royalties from the Laminaria project. 179 According to Oxfam Australia, Australia has also received more than $1 billion from the other oil fields. In 2002, Australia received $81 million from the Laminaria-Corallina fields while East Timor received nothing.180 It is estimated that Australia has received the US$ 2 billion between 1999 and 2005.181 Australia is continuing to take oil from this area at a rate of $1 million a day.182 During 2003, the total revenue from oil and gas reserves from both the Greater Sunrise and the Laminaria-Corralina was estimated to be approximately US$ 36 billion (from 2008-2050) and US$ 2 billion (2002- 2012) respectively. 183 If Australia followed international Law, East Timor
174 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.7. 175 McKee 2002, cited Anderson, “Aid, Trade and Oil’, op.cit., p.123; The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.9 176 Roberts, ‘East Timor calls on Australia to stop exploiting disputed oil field’, op.cit., 177 Bugalski, op.cit., p.293. 178 Head, op.cit., 179 Head, op.cit., 180 Carty, op.cit.,; King, ‘The Timor Gap, 1972-2002’, op.cit., p.47. 181 Medeleine Bryne, ‘East Timor/Australia Talks’, March 16, 2005, NewMatilda.com, http://www.newmatilda.com [Accessed 15 May 2005]. 182 Dusevic, op.cit., p.45. 183 Anderson, “Aid, Trade and Oil’, op.cit., p.122.
149 would be expected to receive an extra $8 billion over the coming decades.184 However, in 2003, Australia took 72 per cent of the oil revenue in the Timor Sea, including 60 per cent of the revenue from fields closer to East Timor.185 Furthermore, critics point out that is a band-aid solution by Australia for its economic development, without the Howard Governments acknowledging East Timor’s sovereignty and median line argument.186
AusAID and the negotiation of maritime boundaries
Critics point out that the Howard Government’s use of neo-liberal approach has entirely minimised the importance of HR in East Timor. This is because Australia has deprived East Timor’s sovereignty and natural resources in the Timor Sea. Australia states that it supports East Timor through AusAID for development priorities and continuing to provide core assistance to facilitate East Timor’s desire for a stable nation. The Howard Government has committed $3.9 billion to East Timor between September 1999 and June 2004.187 In particular, Australia’s aid program has emphasised ‘developing partnership arrangements with the new East Timor Government since East Timor became a state.188 In February 2003, Australia and East Timor signed a memorandum of understanding on technical cooperation for the development of East Timor, including a water supply program, a financial management project and a program to increase skills in the East Timor public service.189 However, AusAID has raised a series of questions about Australia’s motivation for providing aid. The table shows that Australia has gained huge sums of money compared with East Timor.
184 Dusevic, op.cit., p.42. 185 Save East Timor, 2003, http://www.saveeasttimor.org/ [Accessed 10 November 2005]. 186 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.7. 187 Australian Government AusAID, op.cit., 188 The Auditor-General Audit Report, op.cit., 189 Australian Government AusAID, ‘New Aid Agreement with East Timor’, http://www.ausaid.gov.au/media/release.cfm?BC=Media&ID=4904_5751_3409_8032_1044 [Accessed 3 August 2006].
150 Table 3.1: Revenues of East Timor and Australia (US$m) 190
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 East Timor Total Australian aid 721.3 176.5 170.0
Australian aid moneys 39.5 38.9 34.7* 26.4* 26.4* 26.4* 26.4* Bayu-Undan 12 26.7 42.2 38.4 68.5 89.5 72* 72* 72* 72* Greater Sunrise 0 0 0 0 0 0 n/a n/a 64 64 Australia (revenue taken from East Timor’s EEZ)
Greater Sunrise 0 0 0 0 0 0 n/a n/a 64 64 Laminaria-Corallina 250 210 180 150 120 100 50 50 50
As the table shows, Australia has had the opportunity to take revenue from the Laminaria-Corallina field. Anderson’s analyses shows that Australian aid to East Timor peaked at US$27 million annually. However, Australia has received over US$250 million annually, especially since 1999. Hence, Australia has received ten times the revenue than East Timor.191 Australian aid has been criticised in therms of the context of Australia’s controversial and exploitative gains from the disputed areas, namely the Greater Sunrise and the Laminaria-Corallina. The La’s Hamutuk Bulletin reported that Australia aid during 1999-2000 was US$89 million, but Australia gained US$1.2 billion revenue from Laminaria-Corallina, which is more than ten times as much, while East Timor received nothing. 192 Thus, Australia’s approach has been criticised as being exploitative because of East Timor’s remaining an impoverished condition. In East Timor, some 42 per cent of land is agricultural land with corn, rice root crops, vegetables being cultivated and produced. Approximately 838,000 people live in rural area and predominantly an agricultural
190 Resource: Anderson, ‘Aid, Trade and Oil’, op.cit, p.123; Australian Government AusAID, op.cit., ; Mats Lundahl, Fredrik Sjöholm, ‘Economic Development in Timor-Leste, 2000-2005’, Sida, Edita Communication, Stockholm, 2006, p.11; *simplicity is converted into US$ at a rate of 0.66. After 2004 is an estimation from the DFAT; John McBeth explains that revenues from Bayu-Undan would rise to $47 in 2006, when a gas pipeline to Darwin would be finished, it would increased to $350 million a year by 2013 (John McBeth,‘Canberra’s Sea of Troubles’, Far Eastern Economic Review, July 8, 2004, http://www.feer.com [Accessed 30 June 2006]; * By the TST agreement, East Timor has gained more than $6 million every month. Approximately revenues of US$2.5 to 3 billion will go to East Timor over 20 years. 191 Anderson, ‘Aid, Trade and Oil’, op.cit., p.125. 192 The La’o Hamutuk Bulletin, ‘Analysing Australian Assistance to East Timor’, op.cit., p.2.
151 economy. 193 However, productivity is severely low because of poor soil condition and mountainous terrain, meaning that will be important in the country’s development.194 There are more than 40 per cent of people live in poverty line of US$50 cents per person day. 195 Social and economic developments have been slow. In 2004, the budget deficit was estimated at US$126.3 million and it would continue until 2007.196 The poverty conditions in East Timor are indicated on Table 3.2.
Table 3.2: Economic indicators in East Timor 197
2002 2003 2004 2005 2006 GDP (US$m) 343 336 340 355 378 GDP per capita (US$) 398 374 370 378 393 Read GDO growth (per cent -6.7 -6.2 1.8 3.2 5.0 change) Annual budget (US$m) 100 120 83 Current account balance 7.6 5.0 38.0 77.8 101 (per cent GDP)
In 2004, with the second anniversary of East Timor’s’ independence, various reports show that the East Timorese live below the poverty line. Health problem shows high infant and child mortality. It is reported that 126 of every 1,000 children die before their fifth birthday, compared to 6 of every 1,000 in Australia. More than three out of four babies are born with no health care personnel. The East Timorese suffered from dengue fever and at least 10 people died during January and more 84 people were hospitalised. Life expectancy is only 57, compared with 79 in Australia. Population below poverty line is 42 per cent. People try to survive on less than US$1 a day. Additionally, standards of education are indeed low. Literacy (15 and over) is 58.6 per cent. The unemployment rate is 50 per cent including
193 UNAET Agricultural Unit Mini Brief -- Agriculture, cited Fitzpatrick, op.cit., p.16. 194 The Auditor-General Audit Report, op.cit., 195 UNAET Agricultural Unit Mini Brief -- Agriculture, cited Fitzpatrick, op.cit., p.16. 196 The La’o Hamutuk Bulletin,‘Seven Ways to Meet East Timor’s Financial Gap’, 5(2), March, 2004, p.1. 197 DFAT, Fact sheets, ‘East Timor’, Australian Government of Department of Foreign Affairs and Trade, Fact sheets, ‘East Timor’, http://www.dfat.gov.au/geo/east_timor/index/html [Accessed 6 December 2005] ; Save East Timor, op.cit., ; East Timor Action Network, op.cit.,; Head and Tenenbaum, op.cit.,; infoplease, ‘East Timor’, http://www.infoplease.com/ipa/A0902237.html [Accessed 5 June 2006].
152 underemployment.198 East Timor would also face a $30 billion deficit over the next four years and would be heavily dependent on foreign aid.199 In 2005, the UN Human Development Index indicated that East Timor was ranked 140th out of 177 countries over the world. These figures present that East Temporiser’s living a long and healthy life, education and a decent standard of living are quite low, and indicates a properly development is indispensable.200 As Table 3.4 indicates, the East Timor government’s budget in 2004 is $83 million, meaning that this budget is less than $100 for each of its 940,000 citizens. In contrast Australia’s budget is significantly higher, showing $193 billion. It means that Australia’s per capita government expenditure is 108 times of East Timor.201 East Timor has depended on international aid but this is gradually being reduced. During 2003-2004, aid of total ODA was regarded to decrease to 8.4 per cent that was down from $43.9 million to $39.9 million.202 International donors told East Timor that East Timor has oil and gas, and the UN also recommends East Timor seek loans on the basis of natural resources in the Timor Sea. However, there are strong arguments that these loans would not be necessary if Australia stopped exploiting Timor’s wealth that it needs to create a self-sustained economic system.203 As previously discussed, Australian aid has been used as blackmail to force Australia’s conditions on East Timor. Australia has emphasised its contribution, expressing how it is the largest bilateral donor to East Timor. In this regard, in 2000, Downer threatened East Timor, implying that if East Timor would not follow Australia’s suggestions regarding a share of the royalties, Australia’s total aid programs would adversely affect East Timor.204
198 Oxfarm Australia, op.cit., 199 BBC News, ‘Australia ripped over East Timor Oil’, op.cit.,; Lamb, op.cit., ; East Timor Action Network, op.cit.,; Oxfam Australia, op.cit., 200 The Human Development Index,‘Timor-Leste’, http://hdr.undp.org/statistics/data/country_fact_sheets/cty_fs_TMP.html ; the Human Development Index is not a comprehensive measure, but an indicating figures come from a constructed using data form international sources with up-to-date [Accessed 10 October 2005]. 201 East Timor Action Network, op.cit., p.3. 202 Parliamentary Library Department of Parliamentary Service, Research Note, 2003-04, No.59, 31 May 2004. 203 Catry, op.cit., :Xanana Gusmão 2004, cited Dusevic, op.cit., p.42. 204 Catry, op.cit.,
153 Australia knows that AusAID is an important subject to East Timor. Australian aid has demonstrated neo-colonial themes. Furthermore, Australia argues that it conceded 90 per cent of the royalties from Bayu-Undan under the TST and Australia contributed $170 million in aid for humanitarian poverty reduction, health and rural development during 2000- 2004.205 In reply to Australia, Thomas Freitas, East Timor’s NGO argues that the Australia’s intention is to give small amounts of money, so that East Timor gives up its claims to the resources in the Timor Sea. 206 In 2005, Australia cancelled AusAID to an East Timorese human rights NGO, and another grant to an East Timorese environmental NGO, and another grant to an East Timorese environment NGO, because they criticised Australia’s treatment of the Timor Sea.207 Australia has thus utilised its position as a major aid donor for the maritime boundaries. AusAID has not helped any projects in East Timor that minimise Australia’s interests. For instance, since the 1980s, Australia has emphasised agricultural trade liberalisation based on food security. AusAID, therefore, has refused to support food security for strengthening agriculture in East Timor because of the protection of Australia’s export of farm products to East Timor.208 However, as mentioned, agriculture is the primary industry of the East Timorese. This is because Australian aid has been called as ‘band-aid solution’ that links trade.209 Australia’s aid programs to East Timor are seen as investments for gaining higher profits from East Timor. Aid under the Howard Government to East Timor has presented the Australia’s aid programs link human rights with the establishment of a new international economic order and indicate Australia’s pragmatic and manipulative attitude.
205 Dusevic, op.cit., p.43. 206 Lamb, op.cit., 207 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., p.6. 208 DFAT 1996 cited Anderson, ‘The Howard Government, Australian aid and the consequences’, op.cit., 209 Wikinews, ‘Australia accused of bullying East Timor over oil field treaty’, January 13, 2006, http://en.wikinews.org/wiki/, [Accessed 15 July 2006].
154 Australia’s economic priority and Human Rights in East Timor
Australia’s economic approach with neo-liberal ideology towards East Timor is also criticised. In 2000, Australia’s Science and Resources Minister, Nick Minchin announced that Australia would provide two aid programs for East Timor, to be funded by Timor Gap fees that Canberra extracts from oil companies, costing $700,000 a year for two years. These included the provision of job prospects and training for East Timorese in the oil and gas industry. Critics point out that this fund is conditional on accepting Australia’s sovereignty over the disputed fields.210 AusAID has provided AU$40 million annually, but, as multilateral assistance, 10 per cent of AusAID goes to the Trust Fund for East Timor (TFET) that is administrated by the World Bank and the Asian Development Bank. 211 The TFET was established in 1999 for the reconstruction and development of future East Timor. Australia contributed US$12 million to the TFET over three years between 1999-2002.212 Given the neo-liberal ideology recommended by the World Bank, there is concern that East Timor’s share is controlled by neo-liberal ideology and would be adversely impacted. Under neo-liberal globalisation, the state is the means whereby the ruling class forcibly maintains its rule over the other classes, that is, neo-liberal agents such as the World Bank and the IMF. Those organisations have presented the dominant class interests in the world economic system, and have exploited future wealth of developing countries. East Timor became a new member of the Asian Development Bank, which has invested in mega-projects to reduce poverty, with similar policies to the IMF and the World Bank.213 In addition, Australia gave a preferential duty free and quota-free access to the Australian market for goods of East Timorese origin in July 2003. Australia expects economic international trade in other countries for its long-term interests. As previously discussed, Australia is a large exporter to East Timor, accounting for approximately 35 per cent of all
210 Head, op.cit., 211 Anderson, ‘Aid, Trade and Oil’, op.cit., p.116. 212 The Auditor-General Audit Report, op.cit., 213 Esperanza Martinez, ‘East Timor: Survival, Oil, and Sovereignty’, Peacework, 30(336), July 2003, p.14.
155 foreign investment, but East Timor’s products are not imported into Australia.214 Anderson claims that oil has the possibility to be exported to Australia, but it is meaningless because of zero tariffs. He asserts that, “Not only is the Australian announcement an illusory preference, it may provide leverage for Australia to demand that East Timor also abolishes tariffs on the substantial Australian imports. 215 A priority of Australian policy in East Timor is promoting and sustaining a neo-liberal structure of economic relations. So, East Timor is further involved in neo-liberal ideology. Head and Tenenbaum assert that social tension and class antagonism will appear rapidly in East Timor, as has been the experience in many countries.216 Moreover, José Ramos-Horta, the then Foreign Minister expressed anxiety that East Timor cannot handle the oil projects and Australia’s help has exploited East Timor’s offshore oil and fas fields.217 East Timor’s NGOs and other human rights activists worry about the impact if East Timor were to gain control of its resource, arguing that oil production does not help people in East Timor, but does help international oil companies in rich nations.218 In 2003, these companies had concerns over East Timor’s intention of introducing new taxes.219 Australia under the Howard Government has stressed Australia’s commitment to HR in East Timor managing security threat to offshore platforms and fisheries resources. 220 Bateman and Rothwell argue that Australia’s political interests in solving the maritime boundary may be different to their economic and commercial interests. The security concerns in
214 DFAT, ‘East Timor-Country brief’, http://www.dfat.gov.au/geo/east_timor/east_timor_brief.html [Accessed 15 May 2006]. 215 Anderson, ‘Aid, Trade and Oil’, op.cit., p.117. 216 Head and Tenenbaum, op.cit., ; The 2007 riots and political instability in East Timor would give weigh to the accuracy of their prediction. 217 Anonymous, ‘The Failed States Index’, Foreign Policy, No. 149, Jul/Aug 2005, p.62. 218 Lamb, op.cit., 219 Martinez, op.cit., p.14. 220 Alexander Downer, ‘Australia and East Timor Sign Treaty on Maritime Arrangements in the Timor Sea’, Australian Government Department of Foreign Affairs and Trade, http://www.foreignminister.gov.au/release/2006/fa005-06.html [Accessed 16 May 2006].
156 East Timor and its adjacent waters are very important because they provide an easy transit route for people and commodities entering Australia illegally.221 However, East Timor criticised the Howard Government’s arrogant attitude. On the eve of a conference of aid donor countries in April 2004, the then President in East Timor, Gasmão, expressed his view publicly, stating “if our larger, more powerful neighbour steals the money we need to repay loans, that will put us deeper it debt. We will be one more country on the list of debt- ridden countries all over the world”.222 In response to East Timor, Downer expressed his anger at East Timor’s argument that Australia has been exploiting East Timor’s wealth. Australia also put forward counter arguments, accusing East Timor of damaging Australia’s international reputation despite Australia’s immense generosity of conceding 90 per cent of the royalties from Bayu-Undan.223 Moreover, the Government criticised the Government of East Timor, stating that, “the problem in East Timor is capacity to use money effectively, especially in the health area, not shortage of money from offshore oil and gas development.”224 In order to develop a sustainable economy in East Timor, the East Timor Government has plans to manage its petroleum income, and has estimated that it will provide about $93 million annually, which is substantially less than East Timor currently receives in foreign aid. This amount would more than triple if East Timor received its entitlement from the Greater Sunrise and other contested fields.225 Triggs argues that huge revenues from the ZOC will benefit for technology transfer, training and cooperation in East Timor. 226 In August 2000, the current opposition party in Australia, the Labor Party, allowed and passed a resolution that would see East Timor enjoying the benefits of significant revenue from gas and petroleum development. The Labor Party intended to support the negotiation of a permanent maritime
221 Sam Bateman & Donald R. Rothwell, ‘Rethinking Australia’s Legal and Policy Options’, in Rothwell and Tsamenyi (eds), op.cit., pp.172-173. 222 Carty, op.cit., 223 Carty, op.cit., 224 East Timor Action Network, op.cit., 225 East Timor Action Network, op.cit., 226 Triggs, ‘Commercial Risks of Investment in the Timor Gap Treaty Zone of Cooperation Area A’, op.cit., pp.133-134.
157 boundary in the Timor Sea, based on lines of equidistance between Australia and East Timor.227 In 2004, a poll indicated that most Australian citizens did not agree with Australia’s withdrawal from the ICJ’s jurisdiction as this would be likely to endorse East Timor’s claims to a larger share of resources. 228 At the time, Australia’s international reputation regarding Australia’s foreign policy in the Timor Sea had deteriorated markedly, and was seen as an unprincipled oil grab. International concern about Australia’s unfair approaches towards East Timor continues to grow. There have been some protests against Australia’s decisive role; in November 2003, more than 100 NGOs from around the world wrote to the Howard Government to urge for fair negotiations with East Timor, and on January 26th 2004, people in Bangkok campaigned in front of the Australian Embassy. There were more campaigns to protest Australia’s theft of the Timor Sea in Dili in April 2004 and in Washington in June 2004. In April 2004, the Timor Sea Justice Campaign held demonstrations across Australia. The demonstrations included television advertisement, media releases and religious organisations.229 Just before October’s federal election, Mark Latham of the ALP promised to re-open negotiations on maritime boundaries if he was elected. However, Downer reacted by suggesting meeting with East Timor’s Foreign Minister, José Ramos-Horta in order to appeal regarding the current government efforts.230 Hitherto, Australia under the Howard Government has demonstrated a neo-liberal approach to East Timor and has not demonstrated any good faith towards East Timor, as Howard argues. Like the 1989 Timor Gap Treaty, treaties with East Timor are also the trade invest agreements. The Howard Government explains that those maritime boundaries are complex issues and take a reasonable period to sort out.231 However, it is important to note that the lifetime of the oils and gas fields are not permanent. The Howard Government’s downgrading of East Timor’s issue has essentially been a
227 Anthony Bergin, ‘East Timor’s Maritime Future’, in Rothwell and Tsamenyi (eds), op.cit., p.166; McKee, op.cit., 228 Carty, op.cit. 229 The La’o Hamutuku Bulletin, ‘The CMATS Treaty with Australia’, op.cit., pp.4-5. 230 Catry, op.cit.,; Ramos-Horta was awarded the 1996 Nobel Peace Prize in 1996. 231 Wilson 2003 cited Anderson, ‘Aid, Trade and Oil’, op.cit., p.125.
158 pragmatic notion within practical diplomacy for pursuing Australia’s national interests. Contemporary struggles in East Timor are an unprecedented degree.
Conclusion
This chapter has investigated Australia’s approach to the maritime boundary negotiations. The approaches have been dominated by economic priorities to the detriment of HR in East Timor. The maritime boundaries in the Timor Sea have also been influenced by a number of historical factors involving Australia, Indonesia, East Timor and Portugal. The legal procedures defining the maritime boundaries between Australia and East Timor have been very complicated and challengeable; however, the maritime boundary has not been resolved. Australia has conducted many maritime treaties; and it has come under fire since the Timor Gap created in 1972. Regarding the 1989 Timor Gap Treaty, the Labor Party’s policy was criticised in that Australia proceeded with an unlawful maritime delimitation agreement with Indonesia. This unlawful exploitation by Australia and Indonesia violated the resources of East Timor, which international law supports. The Labor Party’s policy was accused of being pragmatic and full of realpolitik with respect to its economic priority. The Labor Party did not display a human rights policy for East Timor’s self- determination. The strong concern underpinning its foreign policies has demonstrated inconsistent approaches for the implementation of HR issues in East Timor. Australia’s foreign policy has evolved in its own selecting policy not to support international law including HR concerns, for the pursuit its national interest. The Howard Government has undertaken its forceful and pragmatic negotiations of maritime boundaries, based on neo-liberal policy. It has violated East Timor, not only in terms of East Timor’s rights in the Timor Sea but also in lessening the likelihood economic stability. It has resulted in depriving East Timorese people of their HR as a minimum living standard. The Howard Government has ignored the need to alleviate East Timor’s
159 poverty. Rather, Australia’s operations have been detrimental to East Timor and East Timor has remained in an impoverished condition in large part due to the Howard Government’s approaches to East Timor. The economic aim to gain benefit from the oil reserves in the Timor Sea has been a driver in the Australian response. The Howard Government has been motivated by the impact of economic globalisation associated with neo- liberal ideology that has shape HR approaches. Thus, this case study has explored Australia’s foreign policy towards East Timor and demonstrated that it has been facilitated by Australia’s pragmatic vision which has pursued its national interests. However such gains have also undermined East Timor’s HR and sovereignty in the Timor Sea. The next chapter finally evaluates Australia’s foreign policy with regards to HR under globalisation.
160 Conclusion
What has influenced the trends in Australia’s foreign policy with regard to human rights (HR)? The thesis has sought to investigate the complex relationships that can arise between Australia’s foreign policy with regards HR and globalisation. This study revealed a number of noteworthy tendencies about HR approaches and the challenges Australia has faced as it has responded to globalisation and global competitive pressures. This chapter summarises this thesis and then seeks to analyse the nature of the findings. Chapter 1 examined the impact of globalisation on states’ foreign policy with regards HR. Firstly, Chapter 1 outlined an overview of the importance of international human rights, addressed the ideological basis and sought to clarify what is meant by HR, as defined by the United Nation Declaration on Human Rights (UDHR). The central principles of the UDHR are equality and non-discrimination principles. HR ideology tells us the importance of theoretically universal and practically globalised. However, the UDHR addresses the many problems in both theory and in practice. In theory, the main criticism against universality is the argument of cultural relativism. Those propounding cultural relativism denounces the UDHR ideology, expressing that the UDHR forces dominant western cultural values and so does not reflect non-western traditional cultural values. They also argue that western as reflecting inconsistency or double standards. Critics of universality denounce HR claiming that they are initially linked to specific, bourgeois class interests of the West. However, as was set out in Chapter1, this thesis has argued that the importance of the purpose of the universality is as an international standard for maintaining international peace. International HR encourages each state to support and contribute to HR issues through their foreign policy. Foreign policy contains wider issues, too, such as recognition and support of HR and international constraints on the behaviour of states. Internally, states try to support the implementation of HR and they do this by uniting with international human rights institutions and ratifying important treaties so they become an important part of international law. A state’s
161 ratification of international human rights treaties indicates the standard and extent to which states should implement international HR. However, HR concerns are not always reflected in states foreign policy. Chapter 1 examined states’ limitations and choices in the implementation of HR within their foreign policy in terms of states’ sovereignty and globalisation. State sovereignty is sometimes a strong barrier international HR in its foreign policy, because of emphasising only the highest legislative authority. Sovereignty is also emphasised for the protection only of its citizens, rather than outsiders. Moreover, globalisation has changed the role of states. The final part of this chapter outlined the definition of globalisation and its role as well as the role and impact of neo-liberal ideology and the role of neo-liberal policy agents. Growing international tensions, instability and marginalisation caused by globalisation, mean that governments have to face a new and more complex challenge to protect their states. Such a global pressure requires states to have rules which more strictly to distinguish ‘inside’ from ‘outside’, in order to exclude outside non-citizens. In particular, economic globalisation has impacted on foreign policy. With increasing economic global demands, contemporary foreign policy about human rights is criticised as being inconsistent, and this inconsistency may continue the attitude of a certain purpose of states for their national interests. This is because HR issues have always been connected with economic interests such as aid programs. These aid programmes are seen as investment by donor countries since they may achieve a big return. The increased commitment to neo-liberal ideology has shaped states’ foreign policy and generally reduced the importance to support for international HR claims. The central point of this adverse direction is that foreign policy generated by economic globalisation has undermined the basic morality and law, which are the minimum human needs for society inherent in the principles of the UDHR. Overall, HR in foreign policy have not been regarded as a high priority in terms of the influence of globalisation. This tendency is seen in Australia’s foreign policy as well. Chapter 2 began by asking whether globalisation has been a major pressure on the capacity of states to make policy towards HR in Australia. Over
162 the last century, in particular, since the 1970s, there have been enormous changes in Australia’s foreign policy with regard HR. Under successive Australian governments, HR approaches under Whitlam, Fraser, Hawke and Keating recognised global awareness, showing a global shift as the UN claimed. In particular, Australia under the Hawke and Keating Labor governments sought to advance Australia as an active, independent member of the international community by improving and promoting international HR remarkably in many ways with practical activities. Australia’s approach to HR has reflected Australia’s many available choices through which it could pursue a range of national interests. Therefore, not surprisingly, Australia has presented inconsistent approaches to HR. In particular, since the Hawke Government embarked on globalisation in 1983, Australia’s foreign policy has changed greatly with increasing priority on global trade and investment. These economic structures and interests have been the main factors that influence HR in practice. In terms of its relationship with Indonesia and the vexed issue of HR, the Labor Party’s variable approach of HR have been contradictory and often problematic, as clearly evident in policies for East Timor. While the Labor Party took a positive attitude to reflect HR domestically in from the 1970s to 1990s, it did not support universality towards outside citizens like East Timor. Rather it could increasingly be associated with negative and aggressive features such as selfishness, considered seeking their own interests, and giving no thought to the interests of East Timor, a vulnerable near-neighbour. Australia’s HR approach tothe perennial conflicts with the demands of international trade has also been evident in the policies of the Howard Government. However, the approach of the Howard Government has differed substantively from that of the Labor Party. The HR approach under Howard has been distinctly more strategic in conception and practice. Howard has downgraded support and promotion of international human rights held by Australia’s sovereignty and national interests. It might be fair to say that Australia’s foreign policy with regards to HR, has been determined by globalisation, which in turn has created contradictions. Its HR approaches have indicated a negative direction for sustained commitment to international HR
163 principles. Even Australia’s self-claimed role in protecting HR in East Timor has instead demonstrated Australia’s global economic priorities associated with neo-liberal and neo-colonial themes, emphasising security more and forcing neo-liberal development programs on to East Timor. Overall, under globalisation, Australia has explored its new freedom of choice very actively with regards to HR. Moreover, since Australia embraced globalisation, it has expanded the global trade system with neo-liberal ideology, in order to enhance its national interests, particularly in supporting domestic and expatriate MNCs’ roles. Economic interests have been important in Australia, and there is no doubt that Australia’s priority in its foreign policy has seen in economic issues. However, giving priority to economic issues appeared to have reduced priority given to moral considerations in interaction with others. In particular, the approaches toward East Timor under the Howard Government have been questioned with regards to the negotiations and conduct of maritime boundaries in the Timor Sea with East Timor. Chapter 3 investigated Australia’s approach to the maritime boundary negotiations. The approaches have been dominated by economic priorities to the detriment of HR in East Timor. The maritime boundaries in the Timor Sae have also been influenced by a number of historical factors involving Australia, Indonesia, East Timor and Portugal. The legal procedures defining the maritime boundaries between Australia and East Timor have been very complicated and challengeable; however, the maritime boundary has not been resolved. As an island nation, Australia has conducted many maritime treaties; but is has come particularly under fire since the Timor Gap created in 1972. Regarding the 1989 Timor Gap Treaty, the Labor Party’s policy was criticised in that Australia proceeded with an unlawful maritime delimitation agreement with Indonesia. This unlawful exploitation by Australia and Indonesia violated the resources of East Timor, which international law supports. The Labor Party’s policy was accused of being pragmatic and full of realpolitik with respect to its economic priority. The Labor Party did not display a human rights policy for East Timor’s self-determination. The strong concern underpinning its foreign policies has created inconsistency for the implementation of HR
164 issues in East Timor. Australia’s foreign policy has evolved in its own selecting policy not to support international law including HR concerns, for the pursuit its national interest. The Howard Government has undertaken its forceful and pragmatic negotiations of maritime boundaries, based on neo-liberal policy. It has violated East Timor, not only in terms of East Timor’s rights in the Timor Sea but also in lessening the likelihood economic stability. It has resulted in depriving East Timorese people of their HR as a minimum living standard. The Howard Government has ignored the need to alleviate East Timor’s poverty. Rather, Australia’s operations have been detrimental to East Timor and East Timor has remained in an impoverished condition in large part due to the Howard Government’s approaches to East Timor. The economic aim to gain benefit from the oil reserves in the Timor Sea has been a driver in the Australian response. The Howard Government has been motivated by the impact of economic globalisation associated with neo- liberal ideology that has shape HR approaches. Thus, this case study has explored Australia’s foreign policy towards East Timor and demonstrated that it has been facilitated by Australia’s pragmatic vision which has pursued its national interests. However such gains have also undermined East Timor’s HR and sovereignty in the Timor Sea. As shown in the introduction, the purpose of the thesis has been to explore the complex relationships between Australia’s HR approaches and globalisation, and to analyse Australia’s foreign policies in terms of its priority choices over HR and economic advancement. In particular, it has explored the hypothesis that since Australia embraced globalisation it has been deeply committed to taking best advantage of the global trade system to enhance its national economic and business interests. The thesis is to clarify the nature of the findings.
165 Discussions of results: Australia’s foreign policy with regards to HR
Globalisation has become a key objective of the Australian Governments’ HR approaches. The effects of globalisation in Australia are complex, multifaceted and geographically diverse. As a result of Australia’s policy with regards to HR has also changed over the last three decades. The apparent features of Australian HR policy abroad have been greatly affected by globalisation. The approaches and stances to HR taken successive governments were to a large extent shaped by globalisation, accepting global HR recognition as a great landmark and incorporating international HR obligation. The promotion of, and support of, international HR was a response to enhance national economic interests. Australia’s HR stance was thus essentially pragmatic for the enhancement of national interests. Australia under the Howard Government has recognised that, more than before, Australia should give primary importance to globalisation and global challenges. Each government over the last quarter century has demonstrated different HR approaches, however, it is consistent that Australia’s HR stance has been essentially stayed pace with globalisation. However, the regime of the Howard Government always posed a problem with regards to HR stances, demonstrating its different HR approach from those of the previous governments’ policy. It might be fair to say that Australia under the Howard Government has emphasised pragmatism for national interests and business interests rather more than previously, particularly through foreign polic relations and by formally withdrawing support from international HR. Each government’s different HR approaches have demonstrated various sets of choices available to Australia’s policy makers. Those choices have led to a high degree of inconsistency, such as evident double standards, tolerance toward friendly states, and defence of trade-offs between HR and development. Australia’s increasingly inconsistent and selective HR approaches can arguably be witnessed in the actions taken by the governments in their foreign policy in enhancement its national interests associated pragmatism, in the face of global movement. Moreover, Australia has evinced a heavy distinction policy making over between internal and external issues, especially in terms of generally
166 protecting HR for its citizens but excluding non-citizens HR, where their needs conflicted with national economic interests. With ongoing economic globalisation, Australia’s claims to commitment to HR has been compromised by the claims of trade and/or investment agreements, because the trade rules for pursuing its national interests have been shaped directly by foreign policy. Australia’s aid programs link to HR to the establishment of the new international economic order, and indicate Australia’s pragmatic and seemingly manipulative attitude. Australia under the Howard Government has remained committed to neo-liberal ideology that seeks to enhance global trade, and apply markets solution to HR. The approaches and stances to international HR taken Australia under the Howard Government has thus to a large extent, been shaped by trade policy. Such policy has made wider the gap between HR approaches to internal and external issues. In particular, East Timor is perhaps Australia’s most notable failure of Australia’s HR policies. Economic interests have largely Australia’s policies over the East Timor for more than thirty years. Australia’s preference for economic gain while disregarding HR in East Timor, is clearly seen in the history of Australian approaches to the delimitation treaties in the Timor Sea that was undertaken in Chapter 3. Since the Timor Gap was created in 1972, Australia has demonstrated its pragmatic approach towards the negotiations of maritime boundaries. Moreover, despite choices available Australia decided not to incorporate HR principles and international law in terms of issues of maritime boundaries in many ways. It can be shown therefore that Australia has long violated HR in East Timor. Initially it was the Whitlam Government which violated HR in East Timor, by conceding Indonesia’s illegal occupation of East Timor in 1975 in order to negotiate over oil and gas reserves over the Timor Sea. East Timor’s sovereignty and sovereignty in the Timor Sea were disregarded. Australia continued to disregard East Timor’s sovereignty until the Howard Coalition Government changed this policy in 1999. The subsequent Fraser Government also continued to disregard East Timor, by giving de jure recognition to Indonesia. Simultaneously, Australia started to negotiate with Indonesia for the seabed delimitation between Australia and East Timor. While both Whitlam
167 and Fraser implemented international HR, their approaches were different to East Timor in terms of the negotiation of over maritime boundaries. The approaches of the Hawke/Keating Labor Governments with regards to the maritime boundaries continued to be the pursuit of national interests, combined with a disregard for East Timor’s sovereignty. Support for international law was also downplayed. Moreover, the Hawke/Keating Governments demonstrated its economic priority in the negotiation and conduct of maritime boundaries. This is best illustrated from the details of the 1989 Timor Gap Treaty. (See Chapter 3). In order to finalise the Timor Gap Treaty, trade was ascribed a priority over and above other considerations and principles. This was because the Hawke/Keating Governments’ pragmatics for economic priority enabled establish a combination of legal rights and commercial interests on the 1989 Timor Gap Treaty, which maritime delimitation and joint development were supposed excluded. The Labour Party’s supporting neo-liberal approaches with its unique choice based on the notion of pragmatism. However, the Timor Gap was contracted at the sacrifice of East Timor’s HR, in terms of promoting good trading relationship with Indonesia based on economic global approach. Australia’s neo-liberal approaches have become ever more evident in the Howard Government, advocating a high degree of dynamism with regard to investment and trade to East Timor. This policy is clearly seen in the dispute over the maritime boundaries in the Timor Sea. The Howard Government’s priority has to Australian economic gain demonstrated that Australia as hindered the promotion of HR in East Timor, depriving East Timor’s lawful oil and gas entitlement that is needed to help East Timor’s economic and social development. The Howard Government’s emphasis on neo-liberal diplomacy under economic globalisation, has resulted in an adverse impact on East Timor. Australia has ignored East Timor’s rightful sovereignty in the Timor Sea, by withdrawing from the ICJ jurisdiction for the negotiation of maritime boundary in 2002. Australia’s withdrawal from the ICJ, strengthened its bargaining position. Instead of having ICJ support, a small state, such as East Timor had to negotiate with a big state, Australia, directly and without relying on
168 international principles. It has also demonstrated that Australia does not adhere to international principles, showing Australia’s selective approach. The bilateral diplomacy has been problematic in terms of unfair oil deals and refusal for a timely negotiation of maritime boundary. The bilateral relationship between Australia and East Timor, has not worked for East Timor at all. The Howard Government has conducted maritime treaties with East Timor without finalising maritime boundaries between Australia and East Timor. Australia argues what is important is to gain profit for establishing new state rather than sovereignty in the Timor Sea. Yet, Australia has not helped East Timor’s development. Australia’s aid program, AusAID has increasingly been the object of strident accusations that Australia has stolen East Timor’s wealth in the Timor Sea. This is because Australia has received more revenues above their AusAID contributions. The contribution of AusAID to East Timor is regarded as Australia’s human rights programs are used as investment for the pursuit of Australia’s national interests. Moreover, the Howard Government’s support for neo-liberal approach was also see in the way aid to East Timor was clearly specified within ‘conditionality’, which is rather similar to neo-colonialism. The description of ‘conditionality’ has been used to denote aid projects being made conditional upon the recipient country’s performance against standards set by the donor. As such, it is regarded a serious HR violation. It also affects the granting, withholding, suspension or reduction of aid. Conditionality has been problematic and heavily seen following failed economic structural adjustment with conditional by the IFIs’ neo-liberal aid projects towards developing countries in the 1980s. As was discussed in Chapter 1, those developing states which experienced the poverty relief programs complained that neo-liberal policies were totally exploitative and vulnerable, and created poverty and destroyed any real chance for developing countries. Thus, it is evident that neo-liberal ideology has not had much room for HR consideration in terms of the purpose of maximising profits. It might be fair to say that neo-liberal ideology, therefore, has been criticised as being exploitative. Moreover, it is important to note that exploitation has prevented the most fundamental rights, rights to life ensuring minimum living standards
169 and rights for social and economic development. I take Brown’s statement that “exploitation and exclusion may be at the heart of abuse of human rights’.1 A similarity is seen in the Howard Governments management towards East Timor through the negotiations of maritime boundary. The destructive views of HR have been particularly influential in East Timor. Chronic food shortages and luck of health care widely evident in East Timor. As was shown in Chapter 3, nearly half of East Timorese (42 per cent) are below the poverty line. It means that they are not guaranteed at least minimum living standards that every human community should be able to reach as basic rights under the UN human rights conceptualisations. East Timor is a member of the UN and recognises the UDHR. The second generation rights, social, economic and cultural rights, can be qualified in East Timor being established minimum standards of individuals’ life under the UDHR claims. However, East Timorese are not guaranteed to develop their lives under the UN human rights concept, in part as a consequence of Australia’s approaches. East Timor has often raised doubts over Australia’s exploitation, not only over sovereignty in the Timor Sea but of also East Timor’s wealth. The poverty in East Timor is likely to deteriorate further as a result of policies of the Howard Government’s economic dominant policy with neo-liberal ideology. As Care has argued forcefully, when economics dominate policy, it does not allow for one space to challenge the other.2 Australia has shown that its failure to support international HR comprehensively in policy and practice to abroad, including the failure to address economic, social and cultural rights from the same stand point as they did civil and political rights for East Timor. While the Howard Government has pointed out that East Timor does not have its capability to use money effectively and more money would not help East Timor, Australia, powerful nation state, could have provided sufficient assistance to East Timor. I take Ojo’s argument that the respecting of HR presents an action on behalf of others
1 Brown, Human rights and the borders of suffering, op.cit., p.14. 2 A. Care, ‘Aboriginals, Colonists and Multiculturalism: The Dialectic of Recognition and Social Exclusion in Australia History’, in D. Weiss (eds), Social Exclusion: An Approach to the Australian Case, Peter Lang, Frankfurt, 2003, p. 26.
170 for humanity.3 Furthermore, philosopher, Brian Orend argues that minimal levels of decent and respectful treatment can be applied beyond national boundaries.4 These ideas contrast with Australia’s humanitarian intervention in East Timor which has been overridden by other elements of the Howard Government’s commitment to economic globalisation and led to inhumane outcomes. Overall, Australia’s selective approaches to international standards has eroded the integrity of those standards. Australia’s HR approach has distinguished between its citizens and non-citizens. It is clear that there is big gap between trade concerns and HR. As well, Australia’s lack of moral and legal imperative are evident. Exploitation and exclusion of others in Australia’s HR stances have been portrayed throughout this thesis. They indicate Australia’s ethical deficiency. It means that Australia has neglected its obligation towards international human rights concept. This is because universality claims quality and non-discrimination as central concept of international human rights. Given historical precedents, it appears more likely that Australia will continue in the future to act in a manner that was consistent with neo-liberal methods for Australian interests. It is important, however, to note that there have been some views which support the return in Australian foreign policy to greater importance for HR. Even a former Prime Minister, Malcolm Fraser has been concerned with the direction of recent Australian HR approaches, particularly because Australia has not incorporated international HR principles.5 The Australian Government should rather, seek to be a model global citizen. Australia should apply ethical responses in pursuing HR and show some concern for the interests of others. Moral obligations are necessary and a value-oriented strategy that supports the implementation of international
3 Ojo, op.cit., p.23. 4 Brian Orend, 2002, cited Andrew Fagan, ‘Human Rights”, The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/h/hum-rts.htm#Historical%20origins%20and. [Accessed 12 September 2005]. 5 Malcolm Fraser, ‘Human Rights and Responsibilities in the Age of Terror’, Chancellor’s Human Rights Lecture, 29 November 2005, University of Melbourne, http://www.unimelb.edu.au/sppeeches [Accessed 3 March 2006].
171 law and HR agreements remain for sustainable development, not only for Australia but also world peace. HR must be supported and given high priority. In conclusion, Australia’s foreign policy with regard HR, in recent decades has been severely compromised by globalisation. The latter created a set of choices to pursue national interests. In the face of these choices Australian governments’ foreign policy makers have increasingly chosen economic and business priorities over HR. Indeed, since it embraced economic globalisation, Australia’s foreign policy has risked being detrimental to long- run HR implementation, through the neglect and undervaluing of international HR. Rather, as this thesis has shown, to stay with its claims to be respectful of HR, Australia needs to consider more foreign policy choices if it is to genuinely uphold international human rights.
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