If, like me, you have been wondering on who would best decide on the maritime border dispute between Australia and Timor Leste, we may soon have the answer. Timor Leste has asked the UN to do just that, but the question remains - by what mechanism? I read recently that Timor-Leste has launched a compulsory conciliation process under the 1982 UN Convention of the Law of the Sea (UNCLOS). Its aim is to get Australia to the negotiating table in order to conclude an agreement on permanent maritime boundaries.
Part IX of UNCLOS provides that the conciliation procedure can be used where one party in the dispute has withdrawn from the UNCLOS compulsory dispute settlement procedures (as Australia did in 2002), two months before Timor-Leste’s independence. Australia has refused to accept that a binding settlement on sea boundaries should be decided by international tribunal. But under the conciliation process, a commission would hear the parties arguments and both would then be obliged to negotiate in good faith on the basis of its report, which (while not binding) carries political pressure.
Part XV of UNCLOS requires Parties to settle their disputes by the peaceful means indicated in the UN Charter. However, if that fails to reach a settlement, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to certain limitations and exceptions.
Article 298 allows exceptions for three types of disputes and only disputes concerning sea boundary delimitation are subject to compulsory conciliation. A State making an Article 298 declaration is also obliged to submit to conciliation. However, excluded from this obligation are disputes that arose before the entry into force of UNCLOS. So,… is this a dispute that arose before the entry into force of UNCLOS? That is a very good question!
The question of delimitation of the maritime boundaries in the Timor Sea came up when Portugal withdrew as administering authority and Indonesia subsequently annexed East Timor in 1975. Australia’s recognition of Indonesian sovereignty over East Timor in 1979 paved the way for negotiations between Australia and Indonesia on the area known as the ‘Timor Gap’ which had been left undelimited by the 1972 seabed treaty between Australia and Indonesia.
As Australia and Indonesia could not agree on a permanent seabed boundary, they entered into a joint development agreement which provisionally dealt with the area in dispute, called the ‘Timor Gap Treaty’. Upon East Timor’s independence on 20 May 2002, Australia and East Timor signed the ‘Timor Sea Treaty’ which entered into force in April 2003. It also created a joint development area to enable exploitation to continue pending final delimitation of the maritime boundary.
It is quite clear that there was a dispute between Australia and Indonesia in that each State’s claim regarding the boundary was opposed by the other. But is the current dispute with East Timor is merely a continuation of that old dispute with Indonesia and thus as a past dispute excluded from the UNCLOS compulsory conciliation, or whether East Timor’s independence creates a break in the chain.
The effect of state succession on the question of ‘past disputes’ has not been tested. However, as a new State is involved in the matter, its likely to be considered a new dispute. So the case is unlikely to qualify for exclusion on this basis.
In the event that all the prerequisite requirements were to be satisfied, and if none of the exclusions apply, conciliation can be instituted, by written notification addressed by one party to the dispute to the other party or parties. The other party to the dispute is obliged to submit to such proceedings. The conciliation commission can be established under Article 3 of Annex V whether or not the other party is willing to cooperate in the appointment of the members of the commission. The commission is required to report within 12 months of its constitution. However, even if all this occurs, here's the clincher the report of the commission, including its conclusions and recommendations, is not binding upon the parties. Analysts say that such a report would carry with it significant political pressure.
