The World

Mar 7, 2018

Timor Sea agreement does not end Timor Sea dispute

The Timor Sea agreement is hardly cause for celebration when the core of the struggle remains unsolved.

Professor Damien Kingsbury

Crikey international affairs commentator

It’s about Greater Sunrise. It was always about Greater Sunrise. The Timor Sea boundary agreement has now been signed in New York, but the key to the dispute -- the $50 billion Greater Sunrise liquid natural gas field -- remains unresolved.

Timor-Leste has argued for many years that the agreement which saw the joint exploitation of the Timor Sea’s oil resources was unfair and illegal under the UN Convention of the Law of the Sea (UNCLOS). It has made this argument based on the "median line" principle in which, under UNCLOS, the sea boundary between two countries should be drawn at the median point.

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2 thoughts on “Timor Sea agreement does not end Timor Sea dispute

  1. Rais

    The way in which Australia’s noble leaders helped Timor-Leste to achieve its penurious independence just warms the cockles of the heart. Get them away from Indonesia and then grab their resources. Having actually visited and made friends in Timor-Leste, I would like to see the robbery recorded as robbery and the thieves punished as thieves.

  2. K

    With respect Damien, UNCLOS does not require the boundary to be at the median line between Australia and Timor-Leste. You appear to be referring to Article 15 of UNCLOS, which limits the territorial sea between the countries (not the right to resources below the seabed). However, even that article expressly says that the median line method does not apply “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith”.

    Part VI of UNCLOS has a completely separate regime for delimitating continental shelf claims, which does not start from a median line presumption like the territorial sea does. Broadly, UNCLOS and, before UNCLOS, customary international law, give three options as to how to set the seabed boundary. One is the median distance between the coastal baselines. A second is the natural prolongation of the continental shelf to the point where it starts to drop off into the deep sea. A third is the natural seabed boundary. Each method is equally valid, but historically, for ownership of subsea resources, the natural prolongation of the continental shelf has a higher degree of support as the seabed resources were considered to be an extension of the land, while for rights to the water column (e.g. fishing), the median line was more commonly accepted.

    The issue is the underwater topology. Working from South to North, the Australian continental shelf stretches relatively shallowly most of the way to Timor. The seabed then dives deeply into the Timor Trough, before rising sharply to the Timor coast. The bottom of the Timor Trough, which arguably is the natural seabed boundary, is less than 50 nautical miles from the Timor coast.

    The 1972 Australia-Indonesia seabed boundary is based on the natural prolongation of the Australian continental shelf, but Australia only enforces water column rights to the median line, particularly in the area east of Ashmore Reef, where a separate MOU between Australia and Indonesia permits some traditional Indonesian fishing rights.

    The JPDA (and its predecessor agreement with Indonesia) set boundary lines, and internal sharing boundaries within the JPDA, based on the three different methods of delimitating the sea-bed boundary. The Southern boundary is the median line and the resources in the Southern zone were originally shared 75/25 to Australia. The Northern zone, which is the area to the North of the Australian continental shelf as it falls into the Timor Trough, was shared 90/10 to Indonesia (originally, prior to Timor-Leste independence). The central zone was shared 50/50.

    The Eastern and Western boundaries of the JPDA are fixed by the boundaries between Indonesia and Timor-Leste, being lines running perpendicular from the coastal baselines at the land borders between those countries.

    As the map in your article indicates, most of Greater Sunrise falls outside of the JPDA. It is governed by the Australia-Indonesia seabed boundary. There is zero prospect of Australia agreeing with Indonesia to redraw that boundary, and no basis that I can think of in international law for Timor-Leste to move its Eastern seabed boundary with Indonesia further to the East to capture more of the Greater Sunrise field (which would necessarily involve Indonesia ceding sovereignty over the seabed to the South of Pulau Leti – it is not going to happen).

    Whilst there are a lot of reasons to have sympathy with Timor-Leste over the way they have been treated both by Indonesia and Australia, on this point neither geography nor international law are on their side.

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