Australia and Timor Leste - who should decide?

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Part IX of UNCLOS provides that the conciliation procedure can be used where one party in the dispute has withdrawn from the UNCLOS compulsory dispute settlement procedures (as Australia did in 2002), two months before Timor-Leste’s independence.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.

East Timor-Australia maritime border to be negotiated before United Nations: Careful what you wish for

Reports about my hospitalisation for post Easter stomach-pumping have been greatly exaggerated. Who knew that the human body had an upper limit of tolerance for chocolate?

My physician has advised a drastic reduction in chocolate consumption - impossible when you live in Switzerland.  It seems that my dream of living inside chocolate heaven and eating my way out would has a dark side.

So what else has been going on in the world ..... there have been developments on my favourite maritime border dispute with huge implications for oil and gas resources in Australia. It looks like East Timor is going to get what they have wished for.  Today Matthew Doran writes in SMH that Timor is taking Australia to the United Nations to solve the dispute over its maritime border under international maritime law. Timor has long argued current arrangements mean it is missing out on billions of dollars in revenue from offshore oil and gas fields. It has now approached the UN to begin a formal conciliation process conducted by an independent panel of experts.

Timor has been trying to wriggle out of its current Treaty arrangements and to settle the border dispute for some time. There have been a number of protest rallies in East Timor, the last  one reportedly taking place on 30 March, according to the SMH and the Guardian.  The Timorese claim that they have lost $6.6 billion in oil and gas revenues to Australia under the current Treaty arrangements for resource sharing. Instead, Timor believes that if the maritime boundary was at the half way point between the two countries, most of the oil and gas reserves in the Timor Sea would lie within their territory.  In response, there is no particular response from the Australian government, who is happy to talk but not about the border dispute.  Julie Bishop was busy touring Indonesia and opening the new embassy building in Jakarta, the largest constructed by Australia. DFAT updated its travel advice on 21 March (asking travellers to exercise a high degree of caution). Apparently, some some embassy employees from Dili got gardening leave back in Canberra.  Never mind, they can enjoy, along with Witness K, the Kingston cafes and the balmy autumn sunshine that Canberra is known for at this time of year.

Why is this all so hard? Well, Timor believes if the maritime boundary was decided under the UN Convention on the Law of the Sea (UNCLOS),  most of the oil and gas reserves in the Timor Sea would lie within their territory.  However, Australia has withdrawn from the maritime boundary jurisdiction of UNCLOS.  In 2002 Australia made a declaration excluding the setting of maritime boundaries from compulsory dispute resolution, the view being that any maritime boundary dispute is best settled by negotiation rather than litigation.

So what does that mean? - a Convention is an agreement between countries, usually developed by the UN or other international organizations. Governments that ratify Conventions have to incorporate them into their own (domestic) laws and to make sure that they are applied and respected. At the time of agreeing to a Convention, Governments can also say that they do not agree with certain parts of its text.  These are called distinctions, restrictions, exclusions, etc.  So even once ratified, Conventions will not apply to exclusions.  This means that although Australia applies UNCLOS, they do not agree that those mechanisms described in it, will be applied by Australia for maritime boundary issues.  This is important for this case,  because the first problem to be solved is to decide who can make the decision on where the border between Australia and East Timor lies.

Lets face it, I could make the decision, but nobody would listen to me - so it has to be an authority that both sides will respect.  Timor latest attempt is to ask the UN to begin a formal conciliation process conducted by an independent panel of experts.
So watch this space...  This opens up a whole lot of other questions - like how will this panel operate, who is qualified to be on this panel, and is it possible for Timor to get a better deal than they already have... and  many more.