Author: Nguyen Hong Thao
Maritime Awareness Project, 24 January 2017
The following are the excerpts of the article:
On January 9, 2017, Australia and Timor-Leste (also known as East Timor) entered a new chapter in their maritime disagreement with the release of a trilateral joint statement (PCA 2016-10) signed by the two relevant parties and the Conciliation Commission that was constituted pursuant to Annex V of the United Nations Convention on the Law of the Sea (UNCLOS). In this new chapter, both the parties and the international legal community will have to reconsider the core issues underlying the disagreement, including those related to joint development, maritime boundary delimitation, the use of separate versus single lines, the validity of the agreements underlying the dispute, the status of newly independent states, state succession to international rights and obligations, the broader role of international law, and peaceful means for the settlement of disputes.
Joint Development and Maritime Boundaries
The Timor Sea case produces several observations. First, international law is an important tool for the creation of peace, stability, and equitable outcomes in international relations. Small and developing countries have tended to be most eager to use the new dispute-settlement procedures provided by UNCLOS to safeguard their interests against larger partners. This is demonstrated not only in the case of the Annex V Conciliation Commission invoked by Timor-Leste in 2016 but also by the Annex VII arbitration requested by the Philippines in its case against China. Compulsory conciliation proceedings can be an option for claimants in the South China Sea dispute to overcome deadlock.
Second, the main cause of the dispute in the Timor Sea lies in the two parties’ different standards of equity, with Timor-Leste favoring the adjusted equidistance/median line and Australia the natural prolongation of the continental shelf. The trilateral agreement presents an active shift in the Australian position. Canberra now has an opportunity to avoid controversy and inconsistency in its attitude toward maritime law, when previously it supported the arbitral proceeding for the South China Sea while rejecting the competence of the Conciliation Commission for the Timor Sea. Negotiation of a permanent maritime boundary in the Timor Sea is achievable and would constitute a positive outcome if both parties demonstrate goodwill and a determination to settle the dispute. The boundary dispute between Japan and South Korea in the East China Sea—in which Japan favors delimitation on the basis of a median line, while South Korea argues for natural prolongation of the continental shelf—was put aside in a 1974 joint development agreement. The dispute between China and Japan, which has been managed in part through a 2008 agreement, sees Japan appearing to adopt the Timorese position and China Australia’s position.
Third, a permanent maritime boundary should consider the possibility of single or separate lines for continental shelves and EEZs. There is also the potential for talks with Indonesia to fix the tripoints between the concerned parties. Pending a final solution, the JPDA continues to have validity.
Fourth, joint development is a practical option for deadlocked jurisdictional disputes that provides access to the natural resources in the disputed area for economic purposes. The success of a joint development agreement depends on several factors, including political will, legal basis, economic factors, and the management model. The Timor Sea case demonstrates again that joint development is not a binding option to resolve maritime disagreements. The implementation of a joint development agreement does not release parties from the obligation to conduct negotiations on a permanent maritime boundary. The Timor Sea case has proved that a joint development plan can contain the seeds of its own potential failure. The Japan–South Korea joint development zone and the Japan-China area in the East China Sea, much like the JDPA in the Timor Sea, use a line based on the natural prolongation principle to define the limits of their zones, which can be inequitable in defining the zone of joint development and sharing ratios. Similarly, joint development between the multiple parties to the South China Sea dispute has not been successful because of the excessive claims represented by the nine-dash line and state actions taken to protest those claims. In some cases, the joint development model has adverse effects when it encourages claimants to maximize their unilateral claims for the purpose of expanding the geographic scope of a joint development zone (so as to increase revenue from exploitation activities in the area). This arrangement can only facilitate cooperation and the negotiation of a permanent maritime boundary if concerned parties display goodwill and realize a joint development area based on clear definitions of reasonable claims to maritime jurisdiction in conformity with UNCLOS.
About the author: Hong Thao Nguyen is a Professor of International Law at the Diplomatic Academy of Vietnam and the Vietnam National University. He has over 40 years of experience in diplomacy, high-level negotiations, and legal study and practice.
Joint Development in the South China Sea: https://seasresearch.wordpress.com/category/joint-development/
Development and Settlement of the Disputes: https://seasresearch.wordpress.com/category/development-and-settlement-of-disputes/