Bounty versus Boundaries: The pursuit of equity and certainty over and down under the Timor Sea
By Jim Mellor for CIITT (Independent Information Center for the Timor Sea, East Timor)
Commercial imperatives: Petroleum production was finally starting following over ten years of exploration and commercial development in the area of joint development at the same time that East Timor began the transition to independence. This has meant that Australia and East Timor have spent most of the last two 2˝ years responding to the pressing need to satisfy the requirements of oil companies holding Petroleum Sharing Contracts in the area and their need for legal, regulatory and fiscal certainty in order to protect billions of dollars worth of investment in development by their shareholders.
The competing demands of nation building: East Timor has been slowly emerging from a period of extreme crisis following the ballot for independence in 1999, has only recently adopted a Constitution and the mechanisms of governance and still lacks a comprehensive legislative framework to provide a basis for dealing with the complex boundary and development issues at issue with Australia in the Timor Sea.
Problems with interim agreements: The terms of the new agreement created additional commercial complications when first introduced in July 2001 and have the potential to reduce the benefits received by East Timor compared to Australia and as previously enjoyed by Indonesia. The attention required in response detracted significantly from consideration of boundary issues.
Most importantly, lack of a willing partner: Australia has not yet demonstrated the same enthusiasm as East Timor for reaching a timely and final settlement of seabed and boundary issues. Without shared motivation and a common goal, the hallmark of any good faith negotiations, or a willingness to allow impartial arbitration in their absence, it will not be possible to find a resolution that both East Timorese and Australians can accept as durable.
What are the reasons for Australia’s apparent lack of enthusiasm for a boundary settlement?
Australia is not subject to the same desire or need to establish its national identity.
Australia is not beset by the same unstable circumstances as East Timor nor does it depend upon the petroleum from the Timor Sea as its only source of significant income. (See Appendix B)
Australia has already secured and enjoys the benefits of the petroleum resources made available by the existing and proposed commercial treaty agreement. This includes not only those from within the area of joint development but also those that by definition fall immediately outside and into waters and seabed exclusively under the control of Australia, now contested by East Timor.
Australia secured those rights and benefits under the circumstances of an earlier time, and under the UN conventions and laws that then existed but have now changed and evolved.
Australia negotiated those rights and benefits with Indonesia in large part based upon the argument that their seabed extends to the edge of their continental shelf calculated to span almost 85% of the distance from its land mass to the coast of East and West Timor
Australia’s continental shelf argument has never been objectively tested or validated outside of the constraints of closed bilateral negotiations where a range of other factors can influence outcomes.
Objective testing of Australia’s continental shelf argument in a boundary settlement under current conventions and prevailing laws, whether by impartial international conciliation, arbitration or disputation, is more likely to favour East Timor’s median line of equidistance solution.
Australia has argued that any change to a median seabed boundary with East Timor that differs from the compromise settlement they reached with Indonesia in 1972 based upon their continental shelf argument will provide Indonesia with a basis to re-open negotiation of their boundaries.
Any change to the median boundary based upon and validated by current conventions and laws strengthens the legal basis and increases the likelihood that the lateral perimeters of the current development will change.
Any change to the lateral boundaries is more likely to increase East Timor’s seabed area and decrease Australia’s in an area where far larger petroleum reserves and potential income exist.
How has Australia sought to protect its position?
Australia has focused on forging a commercial development treaty that does not address any of the outstanding boundary issues.
Although the commercial development treaty is ‘without prejudice’ as required under UNCLOS regarding the future delimitation of boundaries, the treaty extends for at least 30 years and provides no imperative, incentives, framework or mechanisms for advancing boundary settlement.
Australia has supported a requirement by the oil companies that East Timor and Australia must come to an agreement on terms to unify the conditions of the largest of the known petroleum fields in the area, Greater Sunrise. The field straddles the eastern and most contentious boundary of the development area and 80% currently falls within Australian waters. Agreement is sought by year’s end and likely after Treaty ratification despite that fact that project developers do not have markets established, are divided over production options and will not produce oil until at least 2006/7. Together with a ratified treaty, agreement on unitisation is a disincentive to boundary settlement and may diminish East Timor’s ability to recover revenues in the unlikely case that a settlement on delimited boundaries is reached with Australia in future.
The treaty fails to take into account the variance between East Timor’s and Australia’s boundary claims by providing a trust or escrow mechanism into which funds derived from development in contested areas can be placed until boundaries are ultimately determined.
There is some precedent to indicate that international tribunals or the International Court of Justice will decline to rule on changes to boundaries that are already reached by agreement in commercial development treaties.
Australia has taken steps to foreclose certain options for compulsory dispute settlement by arbitral tribunals and the ICJ that would otherwise be afforded to East Timor under UNCLOS.
Australia continues to prepare a submission to the UN Commission on the Limits of the Continental Shelf by the end of 2004 that seeks to reinforce its continental shelf argument and claims to the resources held within the seabed, thereby extending its Maritime Jurisdiction from 11 to 16.5 million sq. kilometres.
In an apparent trade-off for an increase in East Timor’s share of net royalties, Australia has negotiated modifications to the 1989 Treaty that diminish guarantees for East Timorese participation in the far more lucrative upstream and downstream economic benefits from petroleum development when compared to those enjoyed by Indonesia.
Under the same basis, Australia has negotiated new terms absent of previous guarantees that diminish East Timor’s entitlement to training and employment related to development.
Australia has also not assured the inclusion of any mechanism within the agreements themselves that would obligate a progressive building of East Timor’s capacity to participate and gain an increasing share of employment and development benefits. Under terms with Indonesia, these were equally shared relative to the 50:50 division of revenues.
When the taxation and fiscal terms of the July 2001 framework arrangement that forms the basis for the current Treaty were rejected by the operator of the Bayu Undan fields, ready to being production after spending well over A$ 2 billion on preparations, Australia and East Timor both participated in direct negotiations with them to resolve the problems. East Timor agreed to conditions in December that Australia has not yet accepted, linking it to all other JPDA projects.
The report therefore finds and recommends that Australia:
Recognise first and foremost that for East Timor the settling of boundaries with Australia holds far greater significance than solely the allocation of petroleum resources and revenues or advancing a boundary claim simply to improve their negotiating position.
Recognise the imbalance in the conditions and circumstances between East Timor and Australia that make it difficult for both countries to negotiate on equal footing.
Recognise that East Timor must also negotiate boundaries with Indonesia that will inevitably involve or impact upon Australia and their current agreements with Indonesia, and therefore provide a basis for their possible re-negotiation. Accept therefore that boundary adjustment with Indonesia is not a justification to avoid settlement with East Timor.
Recognise that the current tax and fiscal scheme agreement between East Timor and Phillips Petroleum remains a further obstacle to and distraction from negotiations to settle boundaries. If Australia is unwilling to endorse the agreement as it currently stands, the ratification and unitisation agreement process should be suspended until a new agreement can be negotiated that is acceptable to all parties.
Recognise that withholding East Timor’s future funds in escrow at a time when desperately needed and while Australia continues to realise substantial income for contested areas around the JPDA, places undue pressure on East Timor during negotiations. Acknowledge this inequity by releasing escrow funds to East Timor. Likewise encourage Phillips Petroleum to release their upfront contribution to Bayu-Undan if they have not already done so.
Recognise that the Bayu-Undan agreement between Phillips and East Timor was reached under the terms of the July 5, 2001 MOU-TSA that enabled them to stand apart from all other projects. Break therefore the subsequent link that Australia established between Bayu-Undan and all other current Timor Sea developments and remove the requirement that all conditions must first be satisfied.
Recognise that the entry into force of the current agreement may inhibit future boundary settlement and does not provide East Timor with adequate guarantees for participation in all aspects of petroleum development. Suspend ratification until such time as the terms and conditions of the current Treaty or a supplemental agreement can be amended or drafted to provide:
Recognise that, while Australia engages in a national debate about access to Timor Gas for domestic markets and to advance Australia’s economic, social and industrial health, East Timor has similar or greater needs and the TST makes no provision to address them. Amend therefore the TST to incorporate terms that facilitate East Timor’s direct access to and use of their Timor Sea gas as they see fit, or otherwise provide compensation-in-kind.
Recognise that agreement on unitisation of the Greater Sunrise field directly impacts upon future boundary settlement and resource allocation and could prevent East Timor from recovering or enjoying their due and proportional entitlements and benefits. Incorporate therefore within the unitisation agreement amended terms reached by an amended treaty or supplemental agreement.
Recognise that the Greater Sunrise project is in the early design development stage, does not yet have an agreement on development plans between industry partners, has not yet secured any sales commitments or letters of intent from potential customers and that there is no indication that the project or the cost of the gas generated will be competitive and commercially viable. Suspend therefore the current December 31, 2002 deadline to reach agreement until all other obstacles have been sufficiently addressed to warrant consideration and after the treaty agreement is amended.
Recognise that Australia’s withdrawal in March from the compulsory dispute resolutions afforded under the provisions of UNCLOS have severely limited East Timor’s options to achieve a timely settlement of boundary issues and are increasingly seen as a provocative action that is not justified under the conditions of imbalance that exist between East Timor and Australia. Reinstate therefore adherence to all of the four choices of procedure available for resolution of disputes as afforded by UNCLOS.
Recognise that acceptance of all of these recommendations does not necessarily guarantee a timely resolution of boundaries with East Timor. Offer East Timor therefore a commitment to submit within a year the boundary claims of both countries to Conciliation as provided under UNCLOS, Part XV, Article 284, for analysis and non-binding recommendations as to the appropriate solution under prevailing provisions of UNCLOS and relevant precedents established under common international law. Subsequently use the analysis and recommendations to further bilateral negotiations.
Recognise that Australia’s submission regarding its continental shelf claim to UNCLOS by the end of 2004 will further delay progress on boundary settlement with East Timor. Agreed, therefore, to excise the areas below East Timor and the adjoining areas of current boundaries with Indonesia if an agreement in principle on final boundaries has not yet been reached with East Timor, and
Recognise that Article 83 of the United Nations Law of the Sea calls on countries involved with negotiations not to act in a way that jeopardises or hampers final delimitation of seabed boundaries.
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)