Saturday, 19 May 2012

The Timor-Leste Maritime Boundary Case

Original Citation: 2005 ETLJ 1 The Timor-Leste Maritime Boundary Case

Author: Dionisio Babo-Soares & Friends

In the last couple of months, East Timor has entered in a diplomatic battle with its giant but powerful neighbour, Australia, on the resource-rich area of the Timor Sea. Australia, in its bizarre and conservative stance, believes in the Continental shelf approach and uses its 1972 Agreement with Indonesia as a basis to claim its maritime boundary beyond the median line zone with Timor Leste. Recently, the country launched a legal attempt with the United Nations to legitimize its claim, and a panel of experts is looking into the document for a decision in the near future.  Imagine if Australia’s claim on what it believes to be its own is recognised by the United Nations, what would happen to East Timor in terms of its claim to the vast amount of oil and gas in the area of the Timor Sea? East Timor, on the other hand, believes in the median line approach in setting boundaries with the only country which recognized Indonesia’s illegal annexation of Timor Leste.

There are reasons for East Timor to stay on and possibly wage a legal battle on this issue internationally. This article concerns the foundations for East Timor’s legal claim to its maritime boundaries. Below is the outline putting the basis for Timor-Leste's legal position and also spelt out are Timor-Leste's claims under international law in relation to its maritime boundaries with Australia.

Legal Fundamentals
Timor-Leste believes its legal position on maritime boundaries with Australia is very strong.

International law supports Timor-Leste’s claim to the full extent of the current JPDA (Joint Production Develpment Area) and to the areas east and west of the JPDA encompassing the Greater Sunrise gas field, Laminaria-Corralina and Buffalo oilfields. In at least 70 cases,  internationally adjudicated through ICJ and ITLOS, and settlement through negotiation by countries on maritime boundaries, have all been based on the principle that Timor-Leste has up-held, that is, the Median-Line Principle in the delimitation of the boundaries of two Coastal States situated less than 400 nautical miles apart.

Timor-Leste’s Southern Boundary Claim
The assertion or premise – that is common in Australian Government’s public commentary and news - that Australia’s claim of natural prolongation of its territory northward to the deepest part of the Timor Trough is valid and thus it has the right over the whole disputed area are wrong and misleading.

The Timor Trough is not the end of the Australian continental plate or the end of Australian continental shelf; nor is the limit of Australia’s natural prolongation of its territory. Marking the Timor Trough as the physical discontinuity between Australia and Timor-Leste is just a misinterpretation of geology and an erroneous definition of the natural prolongation of continental shelf set in the Article 76 of United Nations Convention on the Law of the Sea 1982.

Geologically, Timor and Australia are on the same continental plate. In this context, the limit of the outer edge of Australia Continental Shelf as described in Article 76 UNCLOS 1982 extents as far as the north coast of Timor-Leste, and such the limit Australia’s natural prolongation of its continent/territory is in the north of Timor-Leste not in the Timor-Trough. The Timor Trough is just a “foreland basin”, a buckled down part of Australia’s continental margin during the collision of Australia’s continental plate and the Banda Arc islands some 3 Million Years ago (according to many geologists).

The seabed arrangement between Australia and Indonesia that was based on Australia’s premise of the natural prolongation of the continental shelf did not involve Timor-Leste or the then Portuguese Timor, therefore, Timor-Leste could not be held accountable nor have to follow the same principle set by Indonesia and Australia in 1972 seabed arrangement.

As the continental shelf claim is wrong and no longer valid under international law, the customary international law (i.e. UNCLOS 1982) allows 200 nautical miles entitlement for each Coastal State. Thus the middle line should be drawn because the two Coastal States lie at a sea distance of less the 400 nautical miles. And this is what is  supposed to happen in the Timor-Leste and Australia case.

And to proove this interpretation and its assertions, Timor-Leste has always been ready for negotiations in good faith and is prepared to have its case examined by international arbitration and or court/tribunals.

Timor-Leste’s Lateral Boundaries Claims
Timor-Leste’s lateral claims encompassing the areas of Greater Sunrise and Laminaria-Coralina and Buffalo are all valid according to International Law according to the opinion of Lowe-Carleton and Ward (2002) *.

The starting point of the western and eastern laterals line of the JPDA are wrong and indefensible under the International Law. In fact, Australia and Indonesia recognized the possible flaw of these lines by providing in Article 3 of their 1972 seabed-boundary treaty that Article 3 of their 1972 sea-bed boundary treaty that Point A17 might have to be moved in the light of any delimitation of the sea-bed in the Timor Gap.

Furthermore, even if the 1972 Indonesia-Australia treaty does not reserve some doubt on its starting points, that treaty did not involve Timor-Leste, and such the Timor-Leste interest must have squeezed as much as possible through those lines. Therefore, Timor-Leste should not assume the accuracy of those points, instead Timor-Leste should negotiate and draw the line based on the right starting points from the landmass of Timor-Leste and its maritime boundary with Indonesia.

When drawing from the right starting points from Timor-Leste as suggested by Lowe-Carleton and Ward (in 2002), Timor-Leste is entitled to all or at least most of the Greater Sunrise gas field and all of the Laminaria-Corralina and Buffalo oilfields.

Since Timor-Leste has valid claims and Australia has been in the areas exploring and exploiting the resources, the areas should be considered as disputed areas deserving at least a temporary joint development solution before hte maritime boundary is delimited.

In the event that no agreement is reached, neither party should explore and exploit the resources unilaterally, as stipulated under international acceptable principles.

However, Australia has unilaterally exploited the resources in the Laminaria-Corralina and Buffalo oilfields and has collected about US$ 1 million per day without one cent going to Timor-Leste. And with no consent from Timor-Leste.

Timor-Leste believes firmly in its claims and legal position and is prepared to negotiate in good faith and have its case examined under international arbitration and or court/tribunals.

Any compromise or solution of the current Timor-Leste Australia Maritime Boundary Delimitation dispute has to take into consideration these claims. This means that any proposed solution should ensure Timor-Leste’s lateral claims to as far as the whole Greater Sunrise and Laminaria-Corralina and Buffalo are recognized.

Below are some excerpts of the Advice by Lowe-Charleton and Ward in 2002, on the Lateral Claims of Timor-Leste. This opinion contradicts the Australian government's argument that the Lateral delimitations of the current JPDA are uncontestable and the Laminaria-Buffalo and Greater Sunrise are under the Jurisdiction of Australia.

Modern Position: Eastern & Western Lateral Boundaries
37.     The eastern and western lateral lines of the 1989 Australia-Indonesia Timor Gap treaty (which are reflected in the 5 July 2001 Memorandum of Understanding) are equally indefensible in modern international law.
38.     The western lateral line proceeds from the wrong starting point in the land mass of Timor and passes through point A17 (drawn by Australia and Indonesia in 1971/72).  East Timor need not accept the accuracy of Point A17 as the lateral limit of its EEZ.  Indeed, Australia and Indonesia expressly provided in Article 3 of their 1972 sea-bed boundary treaty that Point A17 might have to be moved in the light of any delimitation of the sea-bed in the Timor Gap.  In fact, if the lateral line proceeded from the correct point (the thalweg of the Moti Masin) the line would move somewhat to the west of the existing line.
39.     The eastern line was drawn from a point between East Timor and the small Indonesian island of Leti, and connects with Point A16 in the 1972 Australia-Indonesia treaty. Again, East Timor should not assume the accuracy of point A16, which was also covered by the provision for adjustment in Article 3 of the 1972 treaty.
40.     More significant than that is the fact that the eastern lateral line was drawn giving full weight to the island of Leti.  That is to say, the line was drawn so that all points on it were equidistant from East Timor and from the nearest points on Leti or other Indonesian islands. Modern international law, however, does not permit small islands to have a disproportionate and inequitable effect upon maritime boundaries. The law requires that small islands that would disproportionately affect a maritime delimitation be given only a proportional effect - perhaps one half or three-quarters effect, depending on the size of the island and its relationship to the coastline. For example, one hypothetical equidistance line might be drawn giving full effect to Leti (resulting in the line in fact used in the 1989 Treaty), and another hypothetical equidistance line drawn disregarding Leti. The actual boundary might then be drawn half way between those two hypothetical lines, in order to give half effect to Leti, or three-quarters of the way towards the westerly hypothetical line so as to give Leti three-quarters effect.
41.     This approach is now very firmly established in the practice of international courts and tribunals. ICJ and arbitration cases routinely discount the effect given to small islands that would inequitably or disproportionately affect the delimitation. This was done, for example, by the arbitral tribunal in the Western Approaches case (1977) between France and the United Kingdom, where the United Kingdom¹s Scilly Isles were given half weight;  and by the ICJ in the Tunisia/Libya case (1982), in which the Tunisian Kerkennah islands were given half weight.  In the Dubai/Sharjah case (1981), Sharjah's island of Abu Musa was in effect ignored, by giving it no continental shelf beyond its territorial sea - a solution that had also been applied by the tribunal in the Western Approaches arbitration to correct the disproportionate effect of the United Kingdom¹s Channel Islands on the delimitation.  More recently, the approach was applied by the ICJ in the Qatar/Bahrain case (2001).  The approach has also been applied in State practice, in maritime boundaries established by agreement between the States concerned.
42.     If half or three-quarters effect were given to the island of Leti, the eastern lateral line dividing East Timor's EEZ from the EEZs of Australia and Indonesia would move significantly to the east. That would have the practical effect of placing most or all of the Greater Sunrise field within East Timorese jurisdiction, and greatly increasing the resources under East Timor's control.
* Vaughan Lowe, Chichele Professor of Public International Law, Oxford University; Barrister, Essex Court Chambers, London Christopher Carleton, Head, Law of the Sea Division, UK Hydrographic Office Christopher Ward, Barrister-at-Law, Wentworth Chambers, Australia
1. It was only with these claims that Timor-Leste has the Justification for calling Australia “Thiefs”, or “takeaway Timor-Leste’s resources”. So, Timor-Leste shall maintain these claims and be firm on it if wants to be look consistent with its claims.
2. Any compromising or solution of the current Timor-Leste Australia Maritime Boundary Dealock, has to take into consideration these claims. Meaning, that any propose solution shall make sure that Australia recognizes Timor-Leste’s lateral claims to as far as the whole Greater Sunrise and Laminaria-Corralina and Buffalo.
3. If this does not happen than Timor-Leste will be look very inconsistent and Timor-Leste’s calling of Australia as “Thief” loses its foundation and therefore is a shameful for Timor-Leste.
* The authors are members East Timor’s community for a just and peaceful solution of Timor Sea issue.

Edited 12/07/06 by Warren L.  Wright BA LLB

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