Second thoughts on Timor boundary

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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Rex
Rex
2022 years ago

Four Corners recently did a detailed and comprehensive report on this very matter, and RN had a discussion on it also. Did you miss these?

The dispute is in fact two disputes. One relates to the line parallel to the coast of East Timor (That is the one you talk about) [Line 1], and the other is the two lines that extend perpendicular to the East Timor shoreline [lines 2 and 3], that separate the Indonesian water from East Timor water, and essentially define the “width” of the Timor gap.

It is these two ‘perpendicular’ lines [2&3] that are much more critical to both countries, since most of the Oil lies just inside the Australian boundary on both the westerly and easterly sides. In fact the Greater Sunrise field, the biggest, lies 80% in Australian territory.

Any adjustment of the ‘parallel’ line [1] from the continental shelf to the mid-point will have very little impact on Oil revenues. It is these other lines, marking the East West boundary [2 & 3]that are where the real issue lies.

Any adjustment of the perpendiculars [2 & 3] , will involve Indonesian agreement as well. Indonesia must agree to give up its own territory to East Timor in order for the perpendiculars to move. Is this likely? Should Australia feel obligated to give up its territory until the Issue has been agreed with the Indonesians first?

Additionally, If Australia agrees to acknowledge International arbiters and shift the parallel line [1] from the continental shelf to the mid point, then Indonesia and Papua New Guinea will be able to use this precedent to shift their boundaries with Australia.

Australia will then face the possibility of losing millions of square kilometers of Ocean, access to vast resources etc. because it was seen to cave in to East Timor.

The stakes are huge. Not just for East Timor, but for Australia as well. That is why Downer is playing so tough.

There are bigger issues at stake here than a small peice of the Ocean just off East Timor, and a few billion in Oil revenue.

Ken Parish
Ken Parish
2022 years ago

Rex,

I saw the Four Corners program but didn’t listen to the RN presentation. I’m aware of the ‘perpendicular’ line dimension of the dispute. Bialek’s submission doesn’t appear to say anything very meaningful about that aspect, so I didn’t discuss it. I blogged to highlight Bialek’s viewpoint simply because it brings into focus the issues on the median line/continental shelf argument, and served to correct an incomplete picture in that regard given by my previous post.

Of course, the /perpendicular’ and median line/continental shelf arguments are inter-related. There are 2 main possibilities:

(1) Australia’s continental shelf claim is accepted. That means virtually all the oil and gas in all fields so far discovered belongs to Australia. The perpendicular lines are essentially irrelevant to this scenario.
(2) ET’s midpoint claim is accepted. The perpendicular lines are relevant to this scenario, but only because they will determine whether and to what extent the oil and gas is in ET or Indonesian waters (Australia would miss out almost entirely).

Of course, in theory it would be possible to leave the lateral maritime boundary unresolved but negotiate for changes to the perpendicular lines. However, as you observe, that would require Indonesian agreement. In any event, it’s highly unlikely that either Australia or Indonesia would be interested in negotiating the perpendicular boundaries (to the Timor Gap) without resolving the principal lateral maritime boundary. ET’s claim for adjustment in its favour of the perpendicular lines seems much weaker, as far as I can see, than its claim for a median line approach to the main lateral boundary.

Rex
Rex
2022 years ago

ET’s claim for adjustment in its favour of the perpendicular lines seems much weaker, as far as I can see, than its claim for a median line approach to the main lateral boundary

Yes I agree, although that seems to be the main play that the ET negotiators are going for.

I am no fan at all of Downer, but I wondered during his appearance on 4 Corners, whether he might not be giving ET some sage advice. Perhaps I was only imagining hearing a ‘dog whistle’, but I thought he was hinting that ET should tone down its rhetoric, and Australia would look after it. That way ET gets substantial money, and Australia gets to keep its present maritime boundaries with Indonesia etc.