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International Law >>

 
 

Background

Under international law East Timor is entitled to maritime boundaries accepted by its neighbors, which it has never had. East Timor and Australia must negotiate where the maritime boundary lies.

If negotiations fail to produce results, either party could appeal to the International Tribunal for the Law of the Sea or the International Court of Justice (ICJ) to impartially arbitrate the dispute .

However, to preempt East Timor from taking the matter to international arbitration, Australia in March 2002 withdrew from that part of the jurisdiction of the ICJ which deals with maritime boundaries.

This means East Timor has no legal avenue to encourage Australia to follow international legal practice. So clearly East Timor, as a small, newly independent state is locked into a David and Goliath battle with Australia to resolve fair and equitable maritime boundaries.

In spite of this disadvantage, East Timor is trying to negotiate in good faith with Australia. East Timor wants to meet at least every two months, with the goal of concluding the negotiations within five years.

Australia on the other hand is stalling the negotiations and is refusing to negotiate with East Timor. Australia is prepared to have only two rounds of talks per year and is refusing to set a goal for when an agreement will be reached.

The continental shelf argument

The Australian Government is arguing that it should own oil reserves located as close as 80km to East Timor, because Australia claims a prolongated continental shelf that extends far from its coast line.

However, the continental shelf argument is an outdated one. Since the 1982 UN Convention on Law of the Sea, International Law has strongly favoured median line boundaries between two countries less than 400 nautical miles apart.

Churchill and Lowe state in what is one of the most authoritative books on maritime law, that, "Geological and geomorphological factors are all but irrelevant, at least in the case of states opposite each other and less than 400 miles apart." (1999, The Law of the Sea, p190.)

Even DFAT's own international law expert and member of the DFAT negotiation delegation to East Timor last year, 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.

While there are 80 examples of the median line resolving overlapping claims when the two countries are less then 400 nautical miles apart, there is only one exception; the 1972 Australian-Indonesian Treaty which was agreed to when both nations stood to politically benefit and when this area of international law was in its infancy.

Another weakness of the Australian Government's continental shelf argument is its reliance on the claim that the sizeable Timor trough separates East Timor from Australia's continental shelf. However, it's questionable whether the Timor trough marks the end of the Australian continental shelf, or is merely a feature of the same continental shelf that actually ends north of Timor island.

While the Australian Government was willing to ignore geological factors and adopt the median line principles in such situations in its maritime treaty with New Zealand in 2004, it refuses to consider a resolution with East Timor based on the median line principle.

The Australian Government's refusal to allow the matter to go to an independent arbitration body such as the International Court of Justice casts serious doubt over how confident it is of its own legal arguments.

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