24/06/2010 - 00:00

Achieving the best outcome for East Timor

24/06/2010 - 00:00

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All efforts should be made to ensure a fair and equitable outcome for the people of East Timor, based on the rule of law.

MANY people perceived the provisions of the maritime boundary agreements in the Timor and Arafura seas and the three states of Australia, Indonesia and East Timor (Timor-Leste) in 1989, 2002 and 2006 as too generous to both East Timor and Indonesia.

The new maritime arrangements agreed with East Timor under these treaties are on top of the already generous sharing arrangements within the joint petroleum development area (JPDA) under the existing 2002 Timor Sea Treaty, where East Timor receives 90 per cent of revenue from production of hydrocarbon resources, which may be worth as much as $16.9 billion.

East Timor’s petroleum fund, set up to receive and administer the revenues it receives from oil and gas sales, now has a balance of more than $US1 billion from exploitation of resources in the JPDA alone.

Australia has recognised the rights of foreign fishermen, in particular, those from the neighbouring Indonesian islands, to operate in the Arafura and Timor seas provided they carry out those activities in traditional mode and not on grand-scale commercial operations.

There are numerous recorded incidences when alien fishers have drifted into Australian territorial waters and abused the regulations and rules that are in place for the sustainable development of the fisheries.

Rhetoric and rumbles

For their own political purposes, some government and NGO officials from East Timor and Australia continue to oppose the outcomes reached. Similar sentiments also emanate from groups in Australia, East Timor and the US, such as the East Timor and Indonesia Action Network (ETAN), Oxfam, La’o Hamutuk and Green Left, which have accused Australia of blackmail and robbery in its attempts to take control of the hydrocarbon reserves in the Timor Sea.

For example, in March 2004, 53 US congressmen sent a letter to the Australian government urging it to move fairly and expeditiously in the boundary negotiations with East Timor. This was surprising, especially in the light of the tardiness of the US government to ratify the 1982 UN Law of the Sea Convention.

In late 2004 and early 2005, businessman Ian Melrose accused the Australian government of stealing oil and gas supplies from East Timor and was determined to up the ante, by ambushing then Australian prime minister, John Howard, at a series of public events.

It is alleged that Mr Melrose paid around $30,000 for a 30-second television commercial, which received maximum exposure during Australian Open men’s quarter-final match on January 26 2005. The advertisement alleged the federal government had stolen $2 billion in revenue from the East Timorese.

Mr Melrose is a very wealthy and determined man. The Melbourne businessman, who owns a chain of optometrists, noted he would spend $2 million in 2005 on advertising campaigns and media stunts aimed at embarrassing the government.

Such statements issued by credible commentators can be unhelpful to East Timor’s efforts for compensation, if such were the case.

Geographical reality has been clouded by economic and social fabrications and fiction of a legal nature in matters relating to a potential maritime boundary in the Timor Sea. The distortions in the legal sense, manipulation of geophysical reality, sprinklings of political ideology and input of many of self-interest groups have complicated the arguments and brought to the fore the real concerns for the long-term benefits of the citizens of East Timor.

Furthermore, maps and graphics put forward by official and unofficial sources within and outside East Timor to present their case are misleading and mischievous. In the first instance, any set of lateral maritime boundaries projecting southward from East Timor needs to be negotiated with Indonesia. Like many other researchers, I have delineated potential lateral boundaries for East Timor through objective interpretations and these do not match the East Timorese versions which, in any case, have been adapted or adopted from external sources.

What if?

It is a fact that geography was never intended to be equal and that Australia’s sovereign rights, naturally and legally, extend to the edge of the continental shelf and beyond within scientifically determined and defined limits (Article 76 of the 1982 UN Law of the Sea Convention).

What would be the response, conversely, if the roles were reversed, with the East Timorese administrators owning the Australian landmass and adjacent seas and seabed and the government on the other side of the Timor Sea was claiming rights to resources that were in and on their continental shelf? It is very likely that ‘the equidistant principle’ would be rejected. There may even be an inference that the claimants jump into the Timor Trough.

The Australian government would be doing a disservice to its citizens if it conceded to the government of Timor-Leste’s demands. The 1982 convention only suggests that states produce an equitable solution in the event of a dispute over the perceived alignment of maritime jurisdictional limits between states. Australia is providing a more than equitable solution by generously giving 90 per cent and more in numerous aid packages.

Despite this, there is a small group of individuals in East Timor, and in Australia, who suggest that East Timor should gain an even larger slice of the profits. Geopolitical reality would say no; political expediency takes a softer approach with a massive push by some lawyers and those with a vested interest, operating outside of Australia, in developing the hydrocarbon fields.

Conclusion

The Australian government has maintained, with firm conviction, its position that the critical boundary between Australia and Indonesia should reflect the extent of Australia’s natural continental shelf. Australia has worked closely with the East Timorese people and the UN in support of that country’s transition to independence in 2002 and in the following years, especially in the response to the breakdown in law and order there in April 2006 and early 2007.

Australia remains at the forefront of international efforts to provide humanitarian assistance to East Timor and even advocated an expanded UN mission in the country to address East Timor immediate and long-term assistance and development needs.

There is legal principle involved, which includes sovereign rights to place, space and resources and the nation’s birthright should not be sold or given away.

The most important factor is to ensure that any wealth accrued from the development of the marine biotic and mineral resources of the Timor Sea and adjacent waters will be directed towards enhancing the quality of life of the East Timorese and people of the neighbouring islands.

Under the new agreements, Australia will continue to exercise continental shelf jurisdiction outside the JPDA and south of the 1972 Australia-Indonesia seabed boundary. East Timor will be able to exercise fisheries jurisdiction within the JPDA.

A Maritime Commission will also be established to enable high-level dialogue on a range of important issues facing Australia and East Timor in the Timor Sea, including the management of security threats to offshore platforms and co-operation in managing fisheries resources.

 Dr Vivian Louis Forbes is adjunct associate professor (Earth and Environment) and map curator at the University of Western Australia. This article is an edited extract from a strategic analysis paper published by Future Directions International.

 

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