DFAT Expert Supports East Timor’s Maritime Rights

DFAT Expert Supports East Timor’s Maritime Rights

East Timor’s (Timor-Leste) right to establish a fair maritime boundary in the Timor Sea, and Australia’s obligation to negotiate in good faith and not deplete resources in disputed areas, have been supported by a key member of the Australian Government negotiating team that attended talks in Dili this week.

Mr Dean Bialek, an international law expert with the Department of Foreign Affairs and Trade (DFAT), strongly supported East Timor’s position in a written submission and testimony to a parliamentary committee, and in a refereed journal article. Mr Bialek made these points while working as a law lecturer at the University of Melbourne, but this week he was a member of the DFAT delegation that came to Dili for talks on maritime boundaries.

Mr Bialek has specific expertise in Timor Sea maritime law. He has published in prestigious international journals, and the Joint Standing Committee on Treaties (JSCOT) gave considerable weight to his submission and evidence when it reviewed the Timor Sea Treaty.

Median line

Mr Bialek strongly questions Australia’s reliance on the “natural prolongation”of its continental shelf. He wrote in his 2002 submission to JSCOT: “While the principle of natural prolongation remains valid at international law to support Australia’s claim of a shelf out to the Timor Trough, it is increasingly subject to the preference for a median line where there is less than 400 nm between opposite states”.

There have been 80 instances where the median line has been applied to resolving overlapping claims (when states are less than 400nm apart). The 1972 Australia-Indonesia Treaty is the only exception. That Treaty was concluded when international law in this area was in its infancy. Opinion is now almost universally in favour of the median line principle.

One of the most authoritative books on maritime boundaries states: “Geological and geomorphological factors are all but irrelevant, at least in the case of states opposite each other and less than 400 miles apart.” Churchill and Lowe (1999), The Law of the Sea, p190.

Lateral boundaries

Australia has repeatedly stated that the lateral boundaries of the Joint Petroleum Development Area (JPDA) are appropriate as a permanent maritime boundary. This denies East Timor a greater share of Greater Sunrise, and the revenue from Laminaria-Corallina and Buffalo fields.

However, MrBialek stated in his JSCOT submission: “Australia should not regard the JPDA as reflecting lines suitable for a permanent delimitation of the continental shelf between East Timor and Australia. Nor should the JPDA be regarded as reflecting the limits of the area ‘under dispute’.”

Good-faith negotiations

Australia cannot continue to delay the settlement of the Timor Sea boundaries. East Timor is one of the poorest countries in the world and it is losing $US1 million a day in tax revenue to Australia from three oil fields (Laminaria-Corallina and Bufallo) that lie twice as close to East Timor. East Timor has requested montly meetings to resolve the dispute expiditiously, but Australia says it only has the resources to meet twice a year. DFAT officials have told journalists the negotiations may take 30 years, which is very unfair for a country that desperately needs resources to address mass poverty and national reconstruction.

Mr Bialek wrote in his JSCOT submission: “The Australian Government should remain mindful of the need to engage meaningfully in negotiations for the settlement of permanent maritime boundaries with East Timor.”

He added in oral testimony: “There is a general obligation under international law and international relations that there be good faith negotiations toward the conclusion of a permanent boundary. That would, I think, in international law, say that Australia should not drag its feet in terms of reaching a permanent solution.”

The obligation of restraint in disputed areas

Australia is unilaterally exploiting disputed areas in the Timor Sea by issuing exploration and production licenses, and by advertising new permits. It has done this even after signing the Greater Sunrise Unitisation Agreement, which states that both countries have made claims in the disputed area. The production permits for the Laminaria-Corallina and Bufallo fields have earned Australia an estimated US$1.5 billion in tax revenue alone since 1999.

As Mr Bialek wrote in his submission to JSCOT:

“There is at least a good faith good faith requirement to seek to discuss a proposal to explore an area subject to conflicting claims.”

“Australia should avoid the unilateral pursuit of petroleum development in areas now known to be subject to overlapping claims. Such action would serve to heighten diplomatic unease that complicates the movement forward of plans to exploit the lucrative resources of the Timor Sea for the mutual benefit of Australia and East Timor.”

The obligation of restraint can also be found in a joint article by Professor Triggs and Mr Bialek in the Melbourne Journal of International Law.

"There is, however, a legal difference between exploration and exploitation. Australia would be required to refrain from granting a production permit, but mere exploration for gas and condensate potential does not necessarily create a risk of irreparable prejudice to East Timorese interests. Nonetheless, it would be prudent for East Timor, following the entry into force of its Maritime Zones Act, to protect its claims by reaffirming its non-recognition of any interests granted by Australia that are inconsistent with East Timor's rights to an EEZ under international law.”

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