Land Border Agreement with Indonesia: pragmatism and “high level” politics over sovereignty and community rights?

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On 26 January 2024, the governments of Timor-Leste and Indonesia plan to sign an agreement on the final delineation of the land border between the two countries. This process has been ongoing for several years, and Fundasaun Mahein (FM) views the demarcation of land and maritime borders as an essential step towards achieving complete sovereignty over our national territory. In recent days, reports have emerged that the final agreement includes the transfer of 270 hectares of land from Timor-Leste to Indonesia, specifically in the Naktuka area of Oecussi-Ambeno Special Administrative Region (RAEOA). Local community members have reacted with anger to the work of the technical teams who came to mark out the planned border at the end of 2023, apparently without consulting them beforehand. Several local people have stated that their community rejects any agreement which hands over to Indonesia the land on which they have lived and farmed for decades. They highlighted the historical status of the land and its economic and socio-cultural significance, while demanding that the Government consult them before making any agreement with Indonesia. Opposition parties have already begun to voice concerns about the proposed agreement’s implications for Timor-Leste’s sovereignty and community interests.

FM does not have specific information on why the Government agreed to cede this land to Indonesia, and thus we can only speculate about the decision’s objectives and logic. Local community members have stated that Naktuka was part of Portuguese territory, and then part of Timor-Timur province during the Indonesian occupation. On the other hand, several Indonesian media articles have reported that the land is “disputed”, and even that citizens of Timor-Leste “occupied” the land illegally in 1999. Nonetheless, even Indonesian officials from Nusa Tenggara Timur province have acknowledged that this land was previously registered as part of Timor-Timur province, and that Timor-Leste’s claim to this territory is also based on its historical status during the colonial period. Indeed, the colonial occupiers – Netherlands and Portugal – resolved this border issue by treaty in the early 20th century.

Despite Timor-Leste’s strong case for claiming this land, it seems that the Timor-Leste Government decided to transfer the land to achieve its “higher” objective of fully delineating the land border. The Government may also believe that by compromising on this specific issue now, it can extract concessions from Indonesia during subsequent maritime boundary negotiations. Thus, it appears that the Government has prioritised its grand strategy over the land’s historical status and importance for the local community.

Regardless of how the Government arrived at its decision, FM questions the logic, ethics and legality of the agreement to transfer the land. First, conceding land – however small – to Indonesia was bound to create significant controversy given the history between the two countries. Members of the public have recently attacked the current Government for including several so-called “autonomists,” itself another highly controversial topic in this country. Indeed, politicians have frequently accused each other of secretly working for foreign interests, for example in relation to the debate about Greater Sunrise development. FM believes that such accusations have no place in a democratic republic based on the rule of law; however, given Timor-Leste’s context and history, these attacks are potent political weapons, and thus will continue to be used to further partisan interests. Unfortunately, many Timorese already believe that the current Government has been “infiltrated” by people suspected of disloyalty to the cause of Timorese sovereignty, and some will view the decision to transfer land to Indonesia as proof that “treacherous” groups working to subvert the Government. This may provoke further civil unrest, especially with the charged socio-political atmosphere in which debate and protests regarding other government decisions are ongoing.

Second, according to the public statements of Naktuka community members, it appears that the Government did not consult them before making the deal with Indonesia. Thus, the Government has opened itself up to the accusation that it views local people’s lives and livelihoods as expendable in the pursuit of broader objectives. This repeats a long-running pattern of Timorese Governments making plans which significantly impact local people without first asking for the input of the affected communities. Indeed, there are countless examples of communities losing land, homes and livelihoods in the name of “development.” Usually, the “consultations” held by the Government are not substantive, but simply involve the Government telling the community what it has already decided to do. There is no genuine attempt to solicit feedback from communities and adjust plans based on community concerns. This elitist approach to policy making and development projects not only violates the basic rights of affected communities, but also promotes the idea that the public has no ability to influence decisions and that the Government is willing to “sacrifice” the livelihoods of “small people” to achieve its grand vision of development.

Meanwhile, a large proportion of the Timorese public believes that politicians abuse their positions to gain private benefits and advance partisan interests, while ignoring the basic needs of the people. Indeed, there is strong evidence that major corruption has occurred within both the current Government and all previous governments, and that positions and contracts are routinely awarded based on party and personal loyalties and interests. Anger about these issues is now widespread across Timorese society, and FM believes that this represents a “time-bomb” which can easily explode if socio-political pressure increases. In the current context, poorly thought-out decisions about highly sensitive issues such as territorial sovereignty, land rights and the political relationship with Indonesia have the potential to provoke major unrest.

Finally, although FM does not have adequate legal expertise, we are concerned that the proposed agreement with Indonesia violates the spirit, if not the letter, of the Constitution of the Democratic Republic of Timor-Leste, specifically Part I, Section 4.3 on Territory and Section 6 (a), (b) and (c) on the Objectives of the State. We also note that Chapter II, Section 95.2(a) states that the competence for the legal definition of borders lies with the National Parliament, meaning that any agreement on the delineation of borders must go through Parliament. As FM understands it, Parliament has not yet had an opportunity to debate this agreement, meaning that the Government plans to first sign the agreement, then expects the Parliament simply to rubber-stamp it after the fact. To clarify these questions, further legal analysis is needed, including from the Court of Appeal, private lawyers and civil society groups with legal expertise.

As the controversy surrounding the proposed agreement with Indonesia develops, FM urges the Government, Parliament, political parties and civil society to exercise restraint when discussing these sensitive issues. We particularly ask public figures to refrain from accusations of disloyalty and treachery which aim to discredit opponents and stir up emotions among the public. FM asks the Government to respond to the request from the Naktuka community for further consultation, and hope that the Government will not simply rush to sign the agreement in its pursuit of “high level” interests. It is also essential that the agreement follow proper legal procedures, including sending it for debate in the National Parliament before it is signed, rather than simply being handed to the Parliament for ratification after being signed.

Several existing factors in Timor-Leste represent a potent mix for socio-political conflict and instability, including ongoing partisan tensions and regionalism, rising popular frustration with corruption and inequality, and the fragility of state security institutions. Civil unrest has been ongoing about other government decisions and practices, and this issue can easily spark additional protests, especially if provoked by public figures making inflammatory comments. Therefore, we ask all parties to contribute to a constructive debate about this sensitive issue so that a satisfactory resolution can be found which does not sacrifice the basic rights of local communities, while avoiding deeper unrest which threatens the overall stability and security of the state.

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