The following is an English translation of a letter sent from East Timorese civil society leaders to all Members of Parliament on 13 June 2002. The original is in Bahasa Indonesia.
NATIONAL NGO FORUM
NGO Coalition for Timor Gap Monitoring
Revenues from oil and natural gas currently represent East Timor’s greatest hope for meeting the East Timorese people’s basic needs including economic development, health, and education.
Elected members of the National Parliament of the Democratic Republic of East Timor (RDTL) are representatives of the people of East Timor and make up the national decision making body. At this time, you are about to make a very crucial decision about exploration and exploitation of oil and natural gas wealth in the Timor Sea.
The reason for this is that while East Timor’s independence was recognized internationally on 20 May 2002, this country does not yet have maritime boundaries that are based in legal principles found in the UN Convention on the Laws of the Sea (UNCLOS). The maritime boundary between Australia and East Timor and the status of ownership of oil and natural gas wealth are now a national and international problem for debate.
Without giving a legal and rational clarification about resolving the maritime boundaries and the status of ownership of natural resources in the Timor Sea, on 20 May 2002 several hours after the UN officially passed powers to the East Timorese people, East Timorese Prime Minister, Mari Alkatiri, and Australian Prime Minister John Howard signed the Timor Sea Agreement to continue exploration and exploitation of oil and natural gas in the Timor Sea. The 20 May 2002 Treaty follows the Exchange of Notes from February 2000 and the Draft Agreement of July 2001 between UNTAET and Australia.
Apart from the agreement between the two countries, some international experts have advised Parliament members that based on 1982 UNCLOS principles, resources north of the median line in the Timor Sea, including most of the oil and natural gas in this region, belong to East Timor. Based on this law of the sea, experts appeal to Parliament members and the government to not sign and ratify the Treaty with Australia. They also appeal the people of East Timor to bring this problem to international court.
Aside from expert legal opinions on the sea noted above, independent and sovereign East Timor must follow two legal paths: East Timor’s constitution which was written by the East Timorese themselves and UNCLOS from 1982. To understand and implement national and international legal principles, we refer here to various articles in our own Constitution as well as in UNCLOS.
1. Section 4 about the Territory of the Democratic Republic of East Timor states,‘East Timor comprises the land surface, the maritime zone and the air space’, ‘The extent and limits of territorial waters and the exclusive economic zone (EEZ), and the rights of East Timor to the adjacent seabed and continental shelf shall be laid down in the law,’ and ‘The State shall not alienate any part of the East Timorese territory or the rights of sovereignty over the land, without prejudice to rectification of borders.’
The above section explains that East Timor has full power to decide first its land, air and maritime boundaries, following international principles including claiming the 200 mile EEZ. This section also points to the fact that East Timor can not simply let go of its territorial waters and the wealth therein to Australia without giving evidence in accord with International Law of the Sea paths and instruments.
2. Section 139 about Natural Resources states:
The resources of the soil, the subsoil, the territorial waters, the continental shelf and the exclusive economic zone, which are essential to the economy, shall be owned by the State and shall be used in a fair and equitable manner in accordance with national interests.
Conditions for the exploitation of the natural resources referred to in item I above should lend themselves to the establishment of mandatory financial reserves, in accordance with the law. Exploitation of the natural resources shall preserve the ecological balance and prevent destruction of ecosystems.
Exploitation of the natural resources shall preserve the ecological balance and prevent destruction of ecosystems.
This means that the oil, gas and other natural resources in the Timor Sea must be exploited and utilized in the most fair, legal and sustainable manner possible for the prosperity of the East Timorese people.
Referring to the above, we judge that the Timor Sea Agreement does not conform with the mandates in East Timor’s Constitution, resulting in it not giving a fair outcome to the East Timorese people. For example, there are oil and natural gas fields within the Timor Gap and the region of joint exploration as well as outside of these areas, such as the Greater Sunrise fields and Laminaria/Corallina which should belong to East Timor but are currently held by Australia. And we are certain that this represents the result of the illegal 1989 agreement between Australia and Indonesia, when East Timor was under Indonesian occupation.
3. Section 50 about the Right to Work. Paragraph 1 states,‘Every citizen, regardless of gender, has the right and the duty to work and to choose freely his or her profession.’
The meaning of this Section is that a nation must create conditions that will guarantee that each citizen of the country can obtain work for a proper livelihood. Based on the 20 May 2002 Treaty, it is very difficult It for East Timor to guarantee work opportunities for East Timorese because exploitation of this oil and natural gas wealth will be done by Australia. What becomes a problem for East Timor is how to deal with the high unemployment rate which has exceeded tens of thousands, economic development and other things.
UN Convention on the Law of the Sea
UNCLOS also clearly addresses the question of maritime boundaries between two countries:
1. Section 56 Paragraph I states, ‘Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and its subsoil’ In other words, each country has exclusive rights to exploit both the resources located in the water as well as those located on their seabed.
If East Timor receives its proper entitlements to its resources, it should receive revenues of many tens of billions of dollars over the next decades. However under the Timor Sea Treaty that has been signed, East Timor may receive only the portion of its resources which are in ‘Zone A’ or ‘Joint Petroleum Development Area’ (JPDA), which is a much smaller area than East Timor’s potential boundary entitlements.
Oil and gas fields including Greater Sunrise (located east of the JPDA) and Laminaria‑Corralina (located west of the JPDA) should belong to East Timor, but instead, under this Treaty, most of these resources have been given to Australia, which means East Timor giving millions of dollars to Australia.
Article 22 of the 20 May 2002 Timor Sea Treaty states ‘This treaty shall be in force until there is a permanent seabed delimitation between Australia and East Timor or for 30 years from the date of its entry into force, whichever is sooner’.
Australia has stated that it will resist East Timor’s efforts to determine its maritime boundaries with East Timor, preferring to continue the lines drawn by the illegal 1989 Timor Gap Treaty with Indonesia. Australia has shown this by withdrawing from the jurisdiction of the International Court/ICJ over maritime boundary issues ‑ which it did, in March this year. Australian Foreign Minister Alexander Downer has recently confirmed that Australia will not negotiate its seabed boundaries with East Timor. This proves that Australia’s position is to resist any legal determination of its maritime boundaries with East Timor.
Therefore if Australia succeeds in obstructing a seabed boundary determination with East Timor, the wording of the Timor Sea Treaty indicates that this Treaty (if ratified by East Timor’s Parliament) would stay in effect for 30 years ‑ until all the oil and gas is used up and the money has been taken by Australia.
A number of International legal experts have noted that East Timor should try to receive its full entitlements by applying to the International Court of Justice to have its entitlements determined in accordance with international law under the principles of the United Nations Convention on the Law of the Sea (UNCLOS). If not done this way, East Timor’s bargaining position may be seriously weakened.
Even though Australia has attempted to withdraw from the jurisdiction of the International Court, legal advice has been received that the withdrawal only becomes effective three months after notification. That means that if the East Timorese government acts quickly it may still be able to hold Australia to its international obligations to accept seabed boundaries as determined under the international convention.
With a good awareness of the Timor Sea issue and East Timorese national and international legal norms, we take this opportunity to make the following recommendations that the East Timorese parliament:
1. Not ratify the Timor Sea Treaty in its current form. Parliament should inform the Australian government of East Timor’s desire to settle the maritime boundary issue as part of re‑negotiating the treaty.
2. Immediately urge the Government of RDTL to take the steps necessary to bring the boundary issue before the International Court of Justice for legal determination under UNCLOS principles. If East Timor acts quickly, it may be possible to achieve ICJ jurisdiction before Australia’s withdrawal takes effect. These steps could include:
Accede to the UN Convention on the Law of the Sea/UNCLOS and apply for jurisdiction of the International Court of Justice (ICJ);
Take steps to protect East Timor’s national sovereignty and resources by making a claim of these issues to the International Court of Justice and in accordance with the international principles of UNCLOS.
Immediately take steps to obtain jurisdiction of the International Court of Justice (the ICJ) and claim East Timor’s full entitlements under UNCLOS.
Form a multi‑sectoral, multidisciplinary negotiating team to guarantee transparency, accountability in the continuation of the negotiating process.
3. Ask all national Parliament members to use their right to interpollation to understand issues relating to the Timor Sea, including the questions of boundaries, environmental impacts of different approaches, and East Timorese participation in employment, training, and other aspects of the project. Hold public hearings into these matters and participate in open public discussion on these matters of national interest.
Dili, 12 June 2002
Cicilio Caminha Freitas, Executive Director NGO Forum
Dr. Lucas da Costa, Director, CJEPTIL
Adriano do Nascimento, Coordinator, La’o Hamutuk / The East Timor Institute for Reconstruction Monitoring and Analysis
Demetrio do Amaral de Carvalho, Director, Haburas Foundation
Manuela Perreira, Director, FOKUPERS (East Timorese Women’s Communication Forum)
Estanislau Saldanha, MTech., Director for Applied Science and Technology Studies, East Timor Study Group (ETSG)
Mario de Araujo, Coordinator, GMPD (Pro-Democracy, Students’ Movement)
Jose Conceição da Costa, President, KSTL (East Timorese Union Confederation)
Domingos Baptista de Araujo, Director, LAIFET (Labor Advocacy Institute for East Timor)
Julino Ximenes da Silva, Policy Analysis Division, Yayasan HAK (Human Rights Foundation)
Francisco F. Belo, Administrative Coordinator, RENETIL (National East Timorese Students Resistance)
Luciano da Silva, Head of SBST (Timor Socialist Workers Union)
Maria Angelina Sarmento, Coordinator, KSI
Cc: President, Prime Minister, Bishops, political parties and media