What is East Timor asking for in relation to their maritime boundary claim with Australia?
As a sovereign nation, East Timor has the right to set permanent boundaries with its neighbours, including Australia. As a people, as part of the exercise of the right to self-determination, the East Timorese have the right to control the resources to which they are entitled. This is East Timor's main aim in their maritime boundary claim against Australia.
East Timor has claimed an exclusive economic zone around its coastline. In parts, this claim overlaps with Australia's claimed area. East Timor wants this dispute resolved in accordance with current principles of international law.
East Timor's negotiating position is based on a median line (that is, drawing a line halfway between Australia and East Timor) and on equitable lateral boundaries. Australia disagrees with this position.
If the boundaries cannot be set by negotiation, East Timor has asked for the question to go to an international arbitration body, to let an independent umpire decide. Australia opposes this, and has withdrawn from the jurisdiction of the International Court of Justice and the International Tribunal on the Law of the Sea so that East Timor cannot submit its claim there.
East Timor has never asked for generosity from Australia, although it is poor and Australia is relatively rich. All East Timor wants is its entitlement according to international law - no more, no less.
What are the International Court of Justice and the International Tribunal on the Law of the Sea?
The International Court of Justice (ICJ) and the International Tribunal on the Law of the Sea (ITLOS) are independent arbitration bodies where nations can have disputes settled by an independent umpire, like a domestic court of law. These bodies would only step in and settle a dispute if negotiation between two countries failed to get a result.
Unfortunately, unlike a normal court, nations can decide which courts, or which parts of courts' jurisdiction they sign up to.
Up until March 2002, Australia submitted to the jurisdiction of the ICJ and ITLOS which could settle maritime boundary disputes. However, two months before East Timor became an independent nation, and thus gained the capacity to bring a dispute before these courts, Australia secretly and suddenly withdrew from their jurisdiction.
What is the Australian Government currently doing to resolve this issue?
The Australian Government claims that "it doesn't have the resources" to meet on a monthly basis as requested by the East Timorese negotiating team who want to settle the dispute as quickly as possible. Instead, the two negotiating teams have been meeting on a six monthly basis. This is typical of the Australian Government's approach to this issue as the longer the maritime boundary remains undefined, the more money the Australian Government stands to make from gas and oil royalties belonging to East Timor.
In the absence of a maritime boundary, Australia is obliged under international laws to act with restraint in regards to accessing the gas fields. However, every day that passes, $1 million of 'stolen goods' contaminates the Australian economy. On top of this, the Australian Government is still continuing to grant new exploration licences to petroleum companies.
If the matter was taken to an international arbitration body, what would the outcome be?
Although we can not be sure of the exact outcome of a any case put before the International Court of Justice, the predominant international legal opinion is that East Timor would receive sovereignty of all resources on East Timor's side of the median line.
Most examples of international law favour the establishment of boundaries based on the median line whenever the two countries are less than 400 nautical miles apart. Many experts believe that "Geological and geomorphological factors are all but irrelevant" where countries are less than 400 nautical miles apart.
While there are 80 examples of the median line resolving overlapping claims in such cases, there is only one exception: the Australian-Indonesian Treaty agreed to when both nations stood to politically benefit and when this area of international law was in its infancy.
In 2004, when Australia renegotiated its maritime boundaries with New Zealand, it also applied the principles of the median line when the countries' coasts were less than 400 nautical miles apart, such as areas off Northfolk island.
While the East Timorese Government has called for the matter to be taken to international arbitration, the Australian Government refuses to resubmitted to the maritime boundary jurisdiction of either the International Court of Justice (ICJ) or the International Tribunal on the Law of the Sea (ITLOS).
Such reluctance of the Australian Government to take the matter to international arbitration, casts serious doubt over how confident the Australian Government is of its own legal arguments.
What is the continental shelf argument?
The negotiation team for the Australian Government is arguing that the Continental Shelf principle applies in this case.
This argument rests on two assumptions - that Continental Shelf argument is still good law, and that Australia and East Timor are on different continental shelves. Unfortunately, neither of these are correct.
The continental shelf principle is an outdated argument that only has one precedent world wide (Indonesia and Australia). It is not widely supported internationally where countries are less than 400 nautical miles apart.
Secondly, as a matter of geology, East Timor's entire land mass is actually part of the Australian continental shelf. There is no continental shelf break between the nations that could possibly be the basis of a boundary, even if this legal principle applied.
The Australian Government claim that the Timor trough, a deep trench that runs along the ocean floor not far from East Timor's shoreline, marks the end of the Australian continental shelf. However, the trough is merely a feature of, and not the end of, Australia's continental shelf as the continental shelf 'boundary' lies to the north of Timor.
The Timor trough is not a tectonic plate boundary, but rather a subduction zone, and the island of Timor is on the same tectonic plate as Australia.
In any case, such geographical considerations of continental shelves are irrelevant to current UNCLOS laws.
Even DFAT's own international law expert and member of the 2004 DFAT negotiation delegation to East Timor, Mr Dean Bialek, has previously stated in international journals and submissions to the Joint Standing Committee on Treaties, that when there is less then 400 nautical miles between states, the preference is for a median line and not of principles of natural continental shelf prolongation.
What are the implication's for Australia's relationship with Indonesia?
The negotiations between East Timor and Australia are bilateral and do not involve Indonesia in anyway. East Timor has separate treaties for their maritime boundaries with Indonesia, which they are also currently negotiating.
Likewise, Australia also has a separate treaty with Indonesia about their maritime boundaries, which can only be altered with the consent of both Australia and Indonesia. Neither country is able to unilaterally pull out of this treaty.
A line often mentioned in articles about this issue, is that changes to East Timor's maritime boundaries will automatically effect Australia's boundaries with Indonesia. This is simply not the case.
Are Australian jobs at risk from an outcome favourable to East Timor?
The money in dispute is not private income, but government royalties. At this stage the gas is being piped to be processed by an Australian company in Darwin (Australia) creating many employment opportunities.
This is highly likely to continue to be the case regardless of the establishment of a maritime boundary. The gas would still be processed in Darwin, the Australian companies would still make their profits, no Australian jobs would be lost and the Australian Government would still receive tax payments from the companies' profits. The only difference is that East Timor would receive the percentage of royalties that it is entitled to.
What are the stances of the opposition parties on this issue?
The Australian Democrats, One Nation and the Australian Greens, all support what the Timor Sea Justice Campaign advocates. That is, a maritime boundary based on the median line principle that adheres to international guidelines and sees revenue from the oil and gas resources that rightfully belong to East Timor entering the Timorese economy. During parliamentary debate about the Greater Sunrise Unitisation Agreement Implementation Bill, these three parties all supported a suggestion made by the TSJC to place royalties taken by the Australian Government in to a trust fund, to be distributed accordingly when the dispute is resolved. However, the amendment to the bill did not receive the backing of the Australian Labor Party.
The ALP claims that it supports East Timor receiving "a percentage of royalties from the Timor Sea oil and gas fields at least commensurate with what would be their entitlement if maritime boundaries were to be determined under International Law", but so far has failed to support any motions or bills to that effect and generally attempts to avoid the issue.
What can I do to help the campaign?
The 'Take Action' page of this website, lists a few things you could do to help. The most important thing is to let our politicians know how we feel about the issue. The best way to do this is to make an appointment to see you local MP. You can also write to both the Foreign Minister and the Prime Minister. Their contact details are also listed on the 'Take Action' page. Calling talk back radio and writing letters to newspapers is also a good way to raise awareness of the issue.
We'd love to hear how your meetings/phone calls/emails etc went, or better still, why not give us a ring before any planned correspondence so we can give you a few tips?
Please stay in touch via our 'announcement' email list to be kept informed of any developments or calls to action. (see 'Take Action' page')
You can also contact the Timor Sea Justice Campaign to organize a guest speaker at your local community event.