ABSTRACT
For over 40 years, questions over maritime boundary delimitation and resource exploitation in the Timor Sea were seemingly intractable. For what should have been, at face value, a relatively simple delimitation of a maritime boundary between two states widely spaced apart, a combination of factors saw the creation and continuation of a long-running and increasingly litigious dispute that plagued relations between Australia, Timor-Leste, and Indonesia. This chapter considers the origins of the dispute and the various attempts to resolve it before looking at the application of Annex V conciliation under the United Nations Convention on the Law of the Sea. When conciliation was initiated by Timor-Leste in 2016, there seemed little prospect that it would fare any better than several other strategies employed to resolve the dispute. Conciliation had not been used previously by the international community in the more than 20 years since the Law of the Sea Convention entered into force. Yet the parties embraced the process and the Conciliation Commission, led by Danish diplomat Peter Taksøe-Jensen, took a novel approach to the resolution of the dispute.
Techniques employed included the commissioners shuttling between the parties, literally and virtually, as well as the creation of several non-papers, which served to identify the positions of the parties and focus on what became a facilitated negotiation. This was very different from the approach that might have been taken by an international court or tribunal, which would have adopted a far more formal and structured process and would not have replicated the communications between the state parties and the Commissioners in either form or substance. This difference in approach continued over the critical issue of the location of a gas pipeline that would be needed to develop a remote field in the disputed area. The pipeline was identified by the Commission as a focal point in the dispute, with Timor-Leste seeking to have the pipeline brought ashore to its territory to attract the flow-on economic benefits that gas processing would bring and was deeply suspicious of Australian motives for connecting the pipeline to existing infrastructure in the vicinity. The Commission identified that the decision on the pipeline’s location was not merely a political decision, but also an economic one for the consortium of petroleum companies holding the concession to the field, and therefore commenced to draw the joint venture partners into its work. This engagement with industry, beyond the state parties, would be inconceivable for an international court, and yet arguable was the game-changing moment when the dispute could be advanced. Ultimately, even before the Commission’s final report, Australia and Timor-Leste signed a new boundary delimitation agreement. The chapter concludes by assessing whether the dispute was successfully resolved. In the time since the maritime boundary delimitation was concluded, there has been little progress visible in the exploitation of the gas field that was at the heart of the dispute, and consequently, it is appropriate to evaluate the conciliation’s outcomes in that light.
