Don't Conflate the Timor Gap with the South China Sea



Recently, Timor-Leste made headlines for challenging Australia’s claims to the Timor Sea on the basis that they were unfounded, unfair and unbecoming of a nation that prides itself on its commitment to international diplomacy. And yet, late last month it was the Timorese government who decided to violate existing bilateral agreements between the two countries that have successfully led to the peaceful economic development of the region. They have filed a request with the United Nations to resolve the absence of a defined maritime border.

It is easy to paint the picture of Australia as the ‘bad-guy’, deliberately ‘bullying’ its much smaller neighbour into submission so as to derive profits from the resources within the Timor Sea. But the issue is much more complex than the ‘us versus them’ mentality that is currently prevailing.

This complexity hasn’t been helped by recent comments made by Labor’s Foreign Affairs Spokesperson, Tanya Plibersek who outlined Labor’s election policy of negotiating with Timor-Leste, despite the provisions of earlier treaties. Most surprising, she suggested that Australia’s reluctance to enter international arbitration on the Timor Sea was somewhat hypocritical, considering our position on asking China to do the same thing in the South China Sea. Such comments only seek to incite the antipathy of the Timorese, damage bilateral relations, and confuse two vastly different international issues.

There is a complex legal history governing Australia and Timor-Leste’s relationship in the Timor Sea. In 1972 the CSBATAS agreement concluded that Australia’s maritime boundary with Indonesia was to be based upon the United Nations Convention on the Continental Shelf. Australia successfully argued that its shelf (and jurisdiction) ended at the Timor Trough, a trench in the underlying seabed that was located off Australia’s coast by approximately 250-300 nautical miles. Because Timor was a Portuguese colony at the time, a gap was left in the borderline as negotiations with Portugal stalled.

Indonesia’s annexation of East Timor was paralleled by developments in international law that recognised the right of a state to claim a 200 nautical mile Exclusive Economic Zone (EEZ), where it did not conflict with another nation’s EEZ. In recognition of this, Australia and Indonesia both signed the Timor Gap Treaty in 1988, which defined the gap in the boundary as a permanent ‘Zone of Cooperation’, deferring the negotiation of a permanent boundary further. The revenues of resources extraction from the cooperative zone were to be split between the two nations.

When East Timor successfully voted for independence in 1999 the terms of the Timor Gap Treaty were extended as an interim measure and then reinforced by the 2002 Timor Sea Treaty. Finally in 2005, the more conclusive CMATS agreement was reached. It allowed for the exploitation of oil and gas resources within the Timor Gap whilst again, deferring determination of the borders until 2057 or the exhaustion of the disputed resources. The percentage split of the revenue of the Joint Petroleum Development Area was largely increased in Timor-Leste’s favour. The profits from the larger Greater Sunrise field, which is largely within Australia’s boundaries as defined by Australia’s earlier treaty with Indonesia, was to be shared 50:50.

It’s hard to imagine how Ms Plibersek can compare this complicated history of treaties and agreements with China’s absurd claims for jurisdiction over the ‘nine-dash line’, which appears predicated on an insubstantial historical claim and with no reference to any United Nations Conventions. Whereas the South China Sea is a conflict characterised by military bravado, the Timor Gap negotiations have constantly focused on equity and equality.

Claims for a resolution to the issue are also fraught with difficulties. Not least of which, that the adoption of a median line resolution – the current international standard – may not guarantee Timor greater access to the Greater Sunrise oil field. Rather, the redrawing of the east and west border of the Gap would simply facilitate the inclusion of Indonesia in discussions on the future of the petroleum and gas reserves. Considering Indonesia's greater population, and closer proximity to the lucrative resources, it is not unimaginable to consider that Indonesia may refuse to share the profits with its much smaller neighbour. Moreover, renegading on previously negotiated boundaries could set a precedent that re-opens up other bilateral negotiations between Australia and it’s neighbours. This is why Australia has been reluctant to enter negotiations on the issue until such time as the previous treaties permitted.

There is no doubt that Australia has acted inappropriately towards its neighbour. But the 2004 Australian Intelligence spying scandal was the exception to the rule, rather than the norm. A large portion of the Joint Development Area profits flow to Timor, and the percentage has increased with each renegotiation of the Treaty. By ensuring that committed bilateral agreements are adhered to, and that the Timor Government receives an adequate share of the profits, Australia has demonstrated its continuing commitment to international diplomacy and negotiation. Not like China at all.

William Flowers is a recent graduate of the University of Sydney.

This article can be republished with attribution under a Creative Commons Licence. Please email publications@youngausint.org.au for more information.

Image Credit: Christiane Dias (Flickr: Creative Commons)

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