After posting the item immediately below about Timor Leste Foreign Minister Jose Ramos-Horta’s pronouncements on Iraq, it occurred to me (without detracting from Horta’s sincerity) that he may be motivated in part by a desire to build up international reserves of goodwill for his country’s position in the current maritime boundary negotiations with Australia. Several US Congressmen recently expressed the view that Australia should agree to pay oil and gas royalties for fields in disputed areas into an escrow account pending resolution of the boundary dispute. It’s difficult to argue against such a proposal as a matter of principle (to the extent principle has anything to do with international relations), given that legal entitlement to that money is disputed and unresolved.
While musing about that point, I decided to do a quick updated Google search to see if there was any interesting recent material about the Timor-Australia maritime boundary issue. I found this article highlighting statements by an Australian international law expert working with Department of Foreign Affairs & Trade, which provides quite strong support for Timor Leste’s position in the negotiations.
As my previous post on this topic explained, the UN Law of the Sea Convention 1982 prima facie gives nations control of seabed resources on their continental shelf. However, in relation to countries with opposite or adjacent coasts (e.g. Australia and Timor Leste) it simply provides that they should try to seek agreement, and in default of agreement should resort to one of several approved forms of international arbitration. The Convention says little or nothing about the principles and factors governing any such adjudication. However, precedent in previous arbitrations and agreements (to the extent that concept is relevant in international law) apparently provides strong support for Timor Leste’s claim that the median line boundary between the two countries is the appropriate basis for resolution of the dispute:
Mr Dean Bialek, an international law expert with the Department of Foreign Affairs and Trade (DFAT), strongly supported East Timor’s position in a written submission and testimony to a parliamentary committee, and in a refereed journal article. Mr Bialek made these points while working as a law lecturer at the University of Melbourne, but this week he was a member of the DFAT delegation that came to Dili for talks on maritime boundaries.
Mr Bialek has specific expertise in Timor Sea maritime law. He has published in prestigious international journals, and the Joint Standing Committee on Treaties (JSCOT) gave considerable weight to his submission and evidence when it reviewed the Timor Sea Treaty.
Mr Bialek strongly questions Australia’s reliance on the “natural prolongation”of its continental shelf. He wrote in his 2002 submission to JSCOT: “While the principle of natural prolongation remains valid at international law to support Australia’s claim of a shelf out to the Timor Trough, it is increasingly subject to the preference for a median line where there is less than 400 nm between opposite states”.
There have been 80 instances where the median line has been applied to resolving overlapping claims (when states are less than 400nm apart). The 1972 Australia-Indonesia Treaty is the only exception. That Treaty was concluded when international law in this area was in its infancy. Opinion is now almost universally in favour of the median line principle.
One of the most authoritative books on maritime boundaries states: “Geological and geomorphological factors are all but irrelevant, at least in the case of states opposite each other and less than 400 miles apart.” Churchill and Lowe (1999), The Law of the Sea, p190.
Bialek’s submissions seem to provide a likely explanation for Australia’s hasty withdrawal from the jurisdiction of the International Court of Justice shortly before Timor Leste became independent. They also suggest that I owe the Blogger on the Cast Iron Balcony an apology for disparaging remarks I made about her post on this issue. Assuming that Bialek’s points are full and accurate, you can’t help concluding that Australia’s current position is both shameful and indefensible.