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