Negotiating the Settlement of the Timor Sea Boundary Dispute Between Australia and Timor Leste

asia-pacific journal of ocean law and policy 2 (2017) 187-191 brill.com/apoc

Negotiating the Settlement of the Timor Sea Boundary Dispute between Australia and Timor Leste

Donald K. Anton Professor of International Law, Griffith Law School; Director, Law Futures Centre, Griffith University. [email protected]

Australia’s relationship with independent Timor Leste – and before that with Portugal as the administering power over the territory of East Timor under Chapter xiii of the Charter of the United Nations – has been fraught for de- cades by a disagreement over the delimitation of a Timor Sea maritime boundary that divides the opposite coastlines of both countries.1 The disagreement has been driven in large measure by the significant known and anticipated economic benefits bound up with the exploitation of hydrocarbon and min- eral resources beneath the seabed related to the dispute; and by the desire to obtain as great a share as possible by each party. From 2007 to 2013, it was reasonable to suppose that those responsible for managing Australia’s diplomatic relationship with Timor-Leste thought they had eliminated the potential irritant represented by the unresolved dispute, at least over the medium-term. In large measure, the Australian sense of ease on this issue was attributable to the treaty between Australia and Timor-Leste on Certain Maritime Arrangements in the Timor Sea (cmats),2 which entered into force in February 2007. Article 4 of cmats provides notable calm by es- tablishing a fifty-year moratorium on Australia’s otherwise immediate and

1 For a detailed account see Paul Cleary, Shakedown: Australia’s Grab for Timor Oil (2007). See also Gillian Triggs, ‘Creative Conflict Resolution: The Timor Sea Treaty Between Australia and East Timor’ in M. Langton, M. Tehan, L. Palmer & K. Shain (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004), chap. 19; Clive Schofield, ‘Minding the Gap: The Australia – East Timor Treaty on Certain Maritime Arrangements in the Timor Sea (cmats)’ (2007) 22 Int’l J. Marine & Coastal L. 189. 2 [2007] ats 12 (entered into force 23 February 2007).

188 Anton ongoing obligation under the law of the sea to negotiate a permanent maritime boundary with Timor-Leste.3 This sheltered sense of rule bound tranquillity was first upset in April 2013 when Timor-Leste commenced binding arbitral proceedings4 under the ear- lier Timor Sea Treaty (tst).5 However, it was difficult to see how a successful challenge to the tst – a different treaty – could end the cmats’ moratorium. Inextricable synergistic links between the two treaties provide some plausible arguments that it could happen, but they are still difficult arguments to make.6 Linking the tst and cmats in the tst arbitration, however, seemed essential for Timor-Leste if it wants to reopen negotiations on the maritime boundary before 2057 (unless Timor Leste chose to denounce and withdraw from cmats, which it now has (in final proof phase), but the analysis still holds). Absent withdrawal, cmats itself excludes all forms of compulsory dispute settlement. The tst arbitration remains pending, but the legal manoeuvres have continued and things look more promising for Timor Leste than they have in some time. Most recently, in April 2016, Timor-Leste initiated compulsory conciliation proceedings against Australia under Article 298(1)(a)(i) of the un Convention on the Law of the Sea (unclos).7 Compulsory conciliation concerning a dispute about a maritime boundary under unclos becomes available when one party has objected to having such a dispute resolved by other available compulsory procedures entailing binding decisions. In March 2002, two months prior to the independence of Timor-Leste, Australia declared to the Interna- tional Court of Justice (icj)8 and the International Tribunal for the Law of the

3 See Arts. 74 and 83, United Nations Convention on the Law of the Sea (unclos), un Doc a/conf 62/122; 1833 unts 396. Under Articles 74 and 83 Australia would also ordinarily have an obligation to resort to binding dispute settlement procedures under Part xv of the unclos if a delimitation agreement could not be reached within a reasonable period. 4 Arbitration under the Timor Sea Treaty (Timor-Leste v. Australia), Permanent Court of Arbi- tration Repository, Case View, available at: https://pcacases.com/web/view/37. 5 [2003] ats 13, entered into force 2 April 2003. 6 See Donald K. Anton, ‘The Timor Sea Treaty Arbitration: Timor-Leste Challenges Austra- lian Espionage and Seizure of Documents, 18 asil Insights 6 (Feb. 26, 2014), available at: https://www.asil.org/insights/volume/18/issue/6/timor-sea-treaty-arbitration-timor-leste -challengesaustralian-espionage. 7 Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Aus- tralia, Permanent Court of Arbitration Repository, Case View, available at: https://pcacases .com/web/view/132. Pursuant to Article 298 and Annex v of the United Nations Convention on the Law of the Sea (unclos), Timor Leste initiated compulsory conciliation proceedings against Australia. The Conciliation Commission’s powers and functions are established by unclos. The Permanent Court of Arbitration was logistically administering the arbitration. 8 Declarations Recognizing the Jurisdiction of the Court as Compulsory, Australia, available at: http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=AU.

asia-pacific journal of ocean law and policy 2 (2017) 187-191