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15th February 2005.

ON LINE opinion - Australia's e-journal of social and political debate: www.onlineopinion.com.au

The Timor Sea grab

It was a proud moment when John Howard ended 25 years of Australian Government indifference by sending troops to East Timor to end the brutal violence that followed its independence ballot. For the past four years however, the actions of the Howard Government in the Timor Sea are not something of which we can be proud.

East Timor has never had maritime boundaries and is currently negotiating permanent maritime boundaries with Australia. In keeping with 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 equitable lateral boundaries.

Our Government does not agree with this position, yet it blatantly refuses to settle the matter with independent arbitration as requested by the East Timorese Government. In fact, our Government pre-emptively withdrew from the maritime boundary jurisdiction of both the International Court of Justice (ICJ) and the International Tribunal of Laws of the Sea (ITLOS) just two months before East Timor's independence.

Far from acting with restraint, as required by International Law during such disputes, our Government is unilaterally exploiting oil and gas reserves located in areas claimed by East Timor as their Exclusive Economic Zone. Since 1999, our Government has taken $2 billion of gas and oil royalties from the Laminaria, Corallina and Bufalo fields alone, all of which are twice as close to East Timor than us. That's, on average, $1 million a day.

Given that East Timor has an annual budget of only $100 million and is facing extreme poverty, $1 million a day's royalties would have a dramatic impact on efforts to build basic infrastructure such as hospitals and schools.

But with $1 million a day's royalties at stake, perhaps it's not surprising that the Howard Government's approach to the Timor Sea dispute, has been one of stalling, bullying and deception. Our Government continues to cloud this issue by refusing to publicly discuss gas and oil fields outside of the Joint Petroleum Development Area (JPDA) that fall within East Timor's claim. Our Government attempts to promote the notion that the Timor Sea Treaty and the JPDA are finalised deals, rather than the provisional agreements that they are; agreements that were not to jeopardise future maritime boundary negotiations.

Our Government's negotiating position is that because the continental shelf stretches far from our shores, Australia should have sovereignty over gas and oil resources as close as 80 kilometres from East Timor.

However, this continental shelf argument ignores the current principles of International Law that favour median line resolutions and assert that all geographical and geomorphological factors (such as continental shelves) are irrelevant in cases when nations are less than 400 nautical miles apart. It's also questionable whether the Timor trough marks the end of our continental shelf, or is merely a feature of the same continental shelf that actually ends north of Timor.

While there are 80 examples of the median line resolving overlapping claims when 2 countries are less then 400 nautical miles apart, there is only 1 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.

The question remains, if our Government is so sure of its legal arguments to justify its actions, why, in the face of failed negotiations does it not resubmit to the maritime jurisdiction of the ICJ and the ITLOS?

A good faith Australian government would place all revenues from the disputed fields, including those outside the JPDA, in an escrow account until the dispute is settled and the revenues can be distributed accordingly.

The growing momentum of the Timor Sea Justice Campaign demonstrates that Australians want East Timor to succeed. They want a friendly neighbour able to stand economically on its own two feet, without endless loans and aid money. They want a nation that has endured years of incredible hardship, to emerge from its poverty. All of this is possible if the East Timorese can utilise what is rightfully theirs; the petroleum resources that lie closer to East Timor than Australia.

Tom Clarke is the co-ordinator of the Timor Sea Justice Campaign, Melbourne.