thanx
& in fairness & balance
there were at least 2 rebuttals in that forum by other eminent
lawyers
one of which pointed out that east timor has a continental shelf
too
& the other that eezs arent necessarily a function of continental
shelves anyway
but the most poignant question in all this is
exactly why
if not in self defense
did oz quit the icj jurisdiction & jump up on her high chair just as
the mouse was getting loose
indeed the loudest noises now are the shreiks of the ozzies
for example
http://news.ninemsn.com.au/article.aspx?id=3591
--- In
BoundaryPoint@yahoogroups.com, Brendan Whyte
<bwhyte@u...> wrote:
> Forwarded article by eminent lawyer.
> Brendan
>
>
> >Professor Gillian Triggs
> >Director, Institute for Comparative and International Law
> >University of Melbourne.
> >
> >On the 19 April Australia and East Timor will begin four days
of
> >negotiations upon a permanent boundary between them in
the so called
> >"Timor Gap". This new round of negotiations follows the
conclusion by the
> >Howard and Alkatiri governments of two agreements in late
2002 and early
> >2003 for resource exploitation of the Timor Sea. Why, so soon
after these
> >apparently successful negotiations, are Australia and East
Timor back at
> >the negotiating table?
> >
> >An obvious answer lies in the imbalance in resource sharing
arrangements.
> >Under the first agreement, the Timor Sea Treaty, the oil and
gas resources
> >of the Joint Petroleum Development Area (JPDA) in the
disputed area are to
> >be exploited jointly, with 90% of the revenue going to East
Timor and 10%
> >to Australia. The second agreement, the International
Unitisation
> >Agreement (IUA), regulates exploitation of the Greater Sunrise
oil and gas
> >field, 20% of which straddles the eastern limit of the JPDA. As
> >approximately 80% of the Greater Sunrise deposits lie
outside the JPDA in
> >the seabed under Australian sovereignty, 80% of the revenue
is to go to
> >Australia. Consistently with the Timor Sea Treaty, 90% of the
revenues
> >from the 20% of Greater Sunrise that lies within the JPDA
belong to East
> >Timor.
> >
> >In addition to the revenue sharing provisions of the two
agreements there
> >are other critical differences between them. While the Timor
Sea Treaty is
> >legally binding, coming into force on 2 April 2004, the IUA is
not yet in
> >force for Australia and East Timor. More to the point, the
revenue dollars
> >to be earned from the JPDA are minor in comparison to the
billions thought
> >likely to be gained from the huge reserves of the Greater
Sunrise field.
> >The arithmetic exposes the problem: East Timor's 90% of the
expected
> >$3.2-3.8 billions in revenue from the JPDA is significantly less
than
> >Australia's 80% of the expected $8.5 billions in revenue from
Greater Sunrise.
> >
> >It is the disparity in prospective revenues from the JPDA and
Greater
> >Sunrise that appears to have prompted East Timor both to
deny Australian
> >sovereignty over the continental shelf of the Timor Gap and to
claim 100%
> >of the resources of Greater Sunrise. An important provision of
both the
> >Timor Sea Treaty and the IUA is that the agreements are
interim only,
> >pending the final delimitation of a boundary between the
Parties. East
> >Timor is therefore free to insist that negotiations should
commence to
> >settle a permanent boundary. In lead up to these
negotiations, East Timor
> >has made it clear that it rejects the boundaries of the JPDA,
claiming a
> >far larger area of the seabed encompassing Greater Sunrise
to the East and
> >Laminaria to the West and challenging the validity of
boundaries
> >agreed in 1971and 2 between Australia and Indonesia.
> >
> >Complicating these legal differences are the undeniable facts
that East
> >Timor is an impoverished nation emerging from civil war and
illegal
> >annexation. The UN peacekeeping force is due to leave East
Timor in June
> >2005 and civil governance and legal institutions are yet to be
fully
> >developed. Revenues from both the Bayu-Undan and Greater
Sunrise fields
> >would be of immense value to East Timor as it faces the
problems of
> >independence for a population of fewer than a million almost
totally
> >dependent upon foreign aid.
> >
> >These ethical and legal issues have now combined to create
a fog of myths
> >within which negotiations upon a permanent seabed
boundary in the Timor
> >Sea are to begin.
> >
> >One of the most persuasive, but misleading, myths lies in the
apparently
> >rational argument that the seabed between Australia and
East Timor should
> >be based on a median or equidistant line. State practice- a
powerful
> >indicator of customary international law- supports East
Timor's view that
> >overwhelmingly, opposite States sharing a continental shelf,
delimit their
> >seabeds using a median line, albeit adjusted to take account
of other
> >factors such as islands. By contrast, international law does
not require a
> >median line where states do not have a continental shelf in
common. As a
> >matter of geology, Australia is on a continental shelf; East
Timor is not.
> >Australia has consistently maintained its sovereignty over the
continental
> >shelf up to the Timor Trough a major geological feature 3,000
meters deep
> >and about 40 nautical miles from East Timor. Troughs are
common in the
> >Pacific Basin and the Okinawa Trough between China and
Japan similarly
> >impedes negotiations for a final boundary. So too does the
Aruba Gap
> >between Venezuela and Columbia and the Dominican
Republic. State practice
> >in such disputed areas has been both to ignore the
geological feature and
> >to agree jointly to manage exploitation and share the
revenues.
> >
> >Of mythical proportions is the idea that, were Australia to
agree to a
> >median line delimitation, East Timor would gain the greater
part of the
> >oil and gas resources. In fact, the richest of the known
resources lie to
> >the East and West of the present JPDA and lie within
Australian
> >sovereignty under the 1971 and 1972 Seabed Agreements
with Indonesia.
> >
> >Another myth is that the 1972 Seabed Agreement settling the
boundary
> >between Indonesia and Australia is invalid at international
law. Not only
> >was this boundary negotiated in good faith but also it was
entirely
> >consistent with a decision of the International Court of Justice
just 3
> >years earlier in 1969. In the North Sea Continental Shelf
Cases the Court
> >found that states have sovereign rights over their continental
shelf as
> >the "natural prolongation of the land territory" and that
"equidistance'
> >was not a principle of international law. Rather, a continental
shelf was
> >to be delineated on the basis of "equitable" principles. These
ideas are
> >echoed by the 1982 UN Convention on the Law of the Sea
which provides that
> >delimitation of the continental shelf is to be based on
international law
> >to achieve an equitable solution.
> >
> >It is also a myth that East Timor can claim exclusive
exploitation rights
> >to all of Greater Sunrise without affecting Indonesia's
interests.
> >Indonesian seabed rights are necessarily prejudiced
because of the
> >proximity of the Greater Sunrise reserve to the 1972 Seabed
Boundary. In
> >the improbable event that Australia were to accede to East
Timor's demands
> >by moving the eastern and western limits of the JPDA to
include Greater
> >Sunrise and Laminaria, full sovereignty over these resources
would also
> >undermine the 1972 boundaries. To do so requires the
inclusion and consent
> >of Indonesia; consent that is unlikely to be forthcoming.
> >
> >Yet another misleading argument is that the coordinates
upon which the
> >1972 Seabed Boundary was agreed, and upon which the
JPDA was subsequently
> >negotiated, are invalid. To the contrary, the equidistant lines
are
> >consistent with international law, having been drawn to take
account of
> >Indonesia's archipelagic status. A challenge to these lines is
without
> >legal foundation.
> >
> >
> >It is argued that East Timor is not bound by treaties made
prior to its
> >full statehood, whether by Portugal as the Administering
Authority, by
> >Indonesia or by the United Nations peacekeeping authority.
Like many myths
> >this is a half truth. International practice on decolonisation
has been to
> >adopt a "clean slate' approach under which a new state may
decide in its
> >national interests whether to be bound by prior treaties. The
concept of a
> >"clean slate" does not apply to boundary treaties establishing
frontiers
> >or maritime limits. The 1972 Seabed Boundary and the
coordinates
> >established by it are of over 30 years standing, were agreed
in good faith
> >and adopt recognised principles of international law.
> >
> >It is also a myth that disputes over seabed boundaries
should be resolved
> >by an international judicial tribunal. Australia amended the
terms of its
> >acceptance of the compulsory jurisdiction of the International
Court of
> >Justice and the International Tribunal on the Law of the Sea to
exclude
> >disputes concerning delimitation of maritime zones. While
the timing of
> >the amendment 8 weeks before the independence of East
Timor is
> >questionable on ethical grounds, international law permits a
state to
> >decide for itself whether it will submit its disputes to
compulsory
> >resolution by a court. Australian policy is that boundaries with
> >neighbouring states should be negotiated rather than
imposed by a court.
> >Indeed, Australia has an enviable record of negotiating
creative boundary
> >agreements with Papua New Guinea, New Caledonia and
Indonesia. It is also
> >legally relevant that the 1982 UN Convention on the Law of
the Sea
> >specifically encourages states to seek negotiated resolutions
to boundary
> >issues. The Timor Sea Treaty and the IUA are entirely within
the spirit
> >and letter of recognised international law in enabling the joint
> >development of resources that are subject to conflicting
claims.
> >
> >A final myth concerns the nature of a seabed boundary.
Sovereign rights
> >over the continental shelf do not convey territorial sovereignty;
only the
> >right of exclusive development of seabed resources. It is
possible for
> >neighbouring states to agree upon a different regime to
govern the
> >superjacent waters of the Exclusive Economic Zone or
territorial sea. This
> >has been achieved in a 1997 Treaty between Indonesia and
Australia and
> >could well be employed in discussions with East Timor.
> >
> >With the Senate's approval under the IUA Enablement Act
(Cth) 2004,
> >Australia is now able to ratify the IUA. Prime Minister Alkatiri
has by
> >contrast repeatedly stated that East Timor's Parliament will
not do so. It
> >was strategically unwise of Australia to have ratified the Timor
Sea
> >Treaty without first ensuring that the IUA was also in force.
The two
> >agreements should have been more effectively linked. As
matters stand,
> >East Timor has the right to a 90% share in revenues from the
JPDA but can,
> >at the same time, block investment in the development of the
Greater
> >Sunrise deposits, to the significant disadvantage of both
states. In
> >short, East Timor and Australia will benefit from ratification of
the IUA
> >financially and through the opportunities to work fruitfully
together on
> >joint resource management.
> >
> >While Australia has abundant natural resources, international
tribunals
> >have found that it is not the job of international law to
"refashion
> >nature". Nor does equity necessarily require equality. From
the point of
> >view of East Timor these are hard laws. It is will be for
Australia and
> >East Timor to resolve their differences on a permanent
seabed boundary
> >both in good faith and upon a clear understanding of the
international
> >rule of law.