The map shows the location of the Joint Petroleum Development Area (JPDA) within the Timor Sea between Australia and Timor-Leste.
It also marks the 1972 Australia-Indonesia Seabed Boundary and Timor Trough.
The Bayu/Undan, Elang and Jahal oil and gas fields lie within the JPDA.
The Greater Sunrise Unit Area lies partly within the JPDA and partly in Australian seabed jurisdiction to the east of the JPDA and south of the 1972 Australia-Indonesia Seabed Boundary.
From LowyInterpreter by Stephan Grenville
The shadow foreign minister's proposal to take the Timor maritime
boundary to international arbitration if an agreement cannot be reached
has triggered an interesting Interpreter discussion
here (with five comments),
here and
here.
There is still a wide range of opinion on this complex and vexed topic,
but it should be possible to clear away some of the more obvious
misunderstandings and set out the issues which need to be settled
between competing judgments.
First, many of the simplistic statements are wrong (e.g.
Tom Allard
'If the boundary was drawn midway between East Timor and Australia — as
is standard under international law — most of the oil and gas reserves
would lie within Timor's territory.').
If the east-west border were to be drawn at
equidistance, it would,
in effect, give Timor the Joint Petroleum Development Area (JPDA).
This
would mean that instead of getting 90% of the current revenue, Timor
would receive 100%.
But this would also mean that, when
Greater Sunrise
comes on stream, Timor would receive around 20% of its revenue, instead
of the 50% agreed in the 2006 CMATS treaty.
As Sunrise has not yet been
developed, it's not possible to know exactly what this means in terms
of revenue, but Sunrise is usually said to be 2-3 times as big as Bayu
Undan, the main resource within the JPDA.
Thus if drawing this border at
equidistance was the only change, Timor would gain a further 10% of
current production in the JPDA and lose 30% of Sunrise's potential
revenue.
In total, very likely to be less than under CMATS.
East Timor on the GeoGarage platform (AHS chart)
Of course there is much, much more.
Timor doesn't just want to draw
an equidistant east-west boundary; it wants to shift the 'laterals' (the
sides of the JPDA), extending the yellow area down to the median line
on this La'o Hamutuk chart
here.
The JPDA laterals were drawn as 'simplified equidistance' from
Indonesia and Timor.
'Equidistance' is not so straightforward with the
laterals, and widening them would almost certainly involves Indonesia,
if only because this would encroach on Indonesia's Exclusive Economic
Zone (EEZ) covering the water column (but not the seabed).
This was set
down in the 1997 agreement with Australia that is signed but not
ratified, although this EEZ is recognised as a practical matter (e.g.
for fishing supervision) and on maritime charts.
But if we ignore the problem of the EEZ for the moment, and focus
just on the geography of 'equidistance', my amateur reading is that the
closest we have to an objective expert assessment on the exact geography
is
here,
which sets out clearly the alternative ways of drawing the laterals,
including those claimed by Timor and those discussed in the '
Lowe opinion'
(put forward by Petrotimor, an American company which had been given
exploration rights in the disputed area by the Portuguese authorities in
1974).
Among the numerous permutations shown, all except the Timorese
claim and the Lowe opinion cluster around the existing laterals (see
Charts 34-41).
The Lowe opinion actually gives rather modest support to shifting the
laterals.
It explores the idea of modifying the current Indonesian
baselines for the purpose of drawing the laterals, so as to diminish the
importance of some sparsely-populated Indonesian islands and to draw
the laterals on the basis of 'opposite coastlines' rather than
equidistance based on the locus of points equidistant from the closest
point on the baselines.
The effect is to create an eastern lateral which
puts most of Sunrise in Timor territory (see Charts 17-19), even though
the bulk of Sunrise is indisputably closer to Indonesia than it is to
Timor.
This is clever advocacy, but in the end the Lowe opinion accepts
that 'the JPDA is the area to which we consider that East Timor has a
good legal claim at present'.
If this wasn't complicated enough, another argument (see Bernard Collaery's comment
here)
is that because Timor and Indonesian territories form a concave arc, an
equidistant lateral border would give less marine boundary to Timor
than it would have if the two countries lay on a straight line and the
lateral was drawn perpendicular to this straight line (the 'pinch-in'
effect).
But of course Indonesia could make exactly the same argument to
justify swinging the border more to the west.
Second, what about the equally vexed issue of the continental shelf
It is certainly not true that UNCLOS fixes borders on the basis of
equidistance rather than the continental shelf.
In fact the 11 articles
of Part VI of UNCLOS specifically address the continental shelf and its '
natural prolongation'
beyond 200 nautical miles.
As for the specific application to
Australia, to argue — as Michael Leach does — that 'Timor-Leste stands
as the sole exception' to equidistance is wrong, as a glance at this
chart will show:
Since 1953 or earlier, Australia has based its maritime borders on
the continental shelf.
The vast majority of Australia's boundaries are
drawn this way, and all these have been specifically endorsed by UNCLOS'
Commission on the Limits of the Continental Shelf.
The exceptions are
where our continental shelf extends to the shelf of a neighbouring
country, where the border is drawn on the basis of equidistance.
There is, of course, one notable precedent where the continental
shelf over-rode equidistance, and that is the 1972 treaty with
Indonesia.
Even here, equidistance played a role, with more than 500km
of the border (essentially the area adjacent to Irian) being based on
equidistance.
Third, let's look at what UNCLOS actually says.
Article 15 has the only mention of 'equidistance':
Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median
line every point of which is equidistant from the nearest points on the
baselines from which the breadth of the territorial seas of each of the
two States is measured.
The above provision does not apply, however,
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.
Article 84 specifically addresses the case of the continental shelf.
In part, it says:
The delimitation of the continental shelf between States with
opposite or adjacent coasts shall be effected by agreement on the basis
of international law, as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable
solution.
Not much help to either side here; there is no mention of
'equidistance'.
The first priority is to reach agreement, and if this
can't be done, then it has to be sorted out by international dispute
settlement.
Thus it is in dispute settlement, outside UNCLOS itself,
that these issues have been adjudicated.
Through that process in recent decades the continental shelf has lost
ground to the equidistance principle, largely because in almost all
cases the continental shelf is shared by the countries in dispute.
Rather than adjudicate on the esoteric geological advice (which seems to
be able to support any position), the courts have in effect taken the
easy way out and decided on the basis of equidistance, sometimes with
some attempt to take account of whatever 'equitable' means.
So how is a dispute likely to go if put to the international courts, as Labor is offering?
Because the over-riding principle in UNCLOS is 'equitable', the
outcome could be anywhere.
But we might be able to narrow it down a bit.
On the east-west boundary, it is likely that 'equidistance' would
prevail, despite the fact that the Timor Trench is well defined and is
2-3 kilometers deep.
On the laterals, there might be minor refinement,
but the existing ones are so close to Article 15's 'equidistant from the
nearest points on the baseline' that it's hard to see any of the Lowe
arguments or the 'pinch-in' argument gaining traction.
To shift the
laterals so that Sunrise is largely in Timorese territory would infringe
UNCLOS' central 'equidistant' principle, as the bulk of Sunrise is
indisputably closer to Indonesia than it is to Timor.
Shifting the
laterals would also encroach onto Indonesia's agreed EEZ (which just
applies to the
seabed water column*, but would be an endorsement of the separation of seabed and EEZ, which arbitrators will be reluctant to do).
How would this leave the various parties?
Michael Leach is too optimistic when he says: 'There is little
question that a negotiated settlement of maritime boundaries, if it
reflected median line principles, would remove the major irritant in the
relationship for good'.
Timor would have lost what it considers to be
its birthright — widened laterals including Sunrise.
It might not even
get the whole of the JPDA (see the discussion in the Lowe opinion).
Even
if it did, it would almost certainly have less revenue from the known
resources, and would have little leverage to get Sunrise gas piped to
Timor, for the much-hoped-for LNG industry on Timor's southern coast.
Indonesia would be very unhappy with a much more favourable border
adjacent to theirs.
Mochtar Kusumaatmadja, Indonesia's highly-regarded
former foreign minister, who was closely involved in the 1972 treaty,
says 'they were taken to the cleaners'.
If Timor did succeed in having
the laterals shifted, Indonesia would be angrier still.
It has plenty of
ways to make things more difficult for either Timor or Australia, or
both.
As for Australia, just as many Australians might be surprised to know
that we don't yet have a maritime border with Timor, they might be even
more surprised to learn that getting such a border settlement involves
giving up part of the continental shelf, which they may have thought
belonged to us.
Let's see whether the groundswell of public support for
Timor's position remains as strong when the press headline is: 'Labor
offers to give away our continental shelf'.
I'll address two related issues in a later (shorter, I promise!) post: on the virtues of '
rules-based international order' and the shameful ASIS spying on Timor.
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