Google Earth Map for the Timor Sea Maritime Boundary Dispute

Google Earth is an amazing thing, and it’s hard to understand what’s truly going on in the Timor Sea simply by looking at pictures, so I’ve created a Google Earth collection that shows the coordinates provided in the major treaties affecting the region: the 1972 Indonesian-Australian Seabed Boundary Agreement [PDF], the 1981 Provisional Fisheries Surveillance and Enforcement Arrangement [PDF], the 1989 Timor Gap Treaty, the 1997 Water Column Boundary Agreement, the 2002 Timor Sea Treaty, and the 2006 Sunrise IUA/CMATS.

The Google Earth collection for the Maritime Boundaries in the Timor Sea can be downloaded here.

Map Explosion

if you display all of the treaties at once, it kind of looks like a rainbow threw up in the Timor Sea

If you’re interested in figuring out how all these treaties work together, it is probably more useful to just go ahead and play around with it on Google Earth, but I’ve provided a visual summary below using screencaps from the collection.

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How Australia Overplayed Its Hand in the Timor Sea

In 1976, the Australian ambassador to Indonesia wrote that, in deciding whether to support the right of the Timorese people to self-determination or to instead accede to Indonesia’s annexation, Australia faced a choice between “Wilsonian idealism” and “Kissengerian realism.” For reasons having a lot to do with petroleum, Australia decided to go with what it saw as the latter option.

Today, the Timor Sea dispute remains unresolved, and it is clear that Australia still has not decided to go with the “Wilsonian idealism” option. But if Australia thinks that its strategy has instead been one of “Kissengerian realism,” then it is sadly flattering itself. Australia’s strategy isn’t “realist” – it’s petty bullying motivated by a very narrow political economy concern.

The short-term results for Australia have been somewhat favorable, if mixed, but there is reason to doubt that this strategy will ultimately be in Australia’s long-term interests. Thus far, Australia has now spent over forty years pursuing a sovereignty claim that was long ago discarded by international law, and, so far, its reach has continually exceeded its grasp.

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The Historical Context of Australia’s Political and Legal Strategy in the Timor Sea

In 1974, with the prospect of an Indonesian annexation of Timor on the horizon, Australia faced an important question: would Australia receive more favorable access to the gas and oil fields in the Timor Sea if Timor had an (a) Portuguese government, (b) Indonesian government, or (c) independent government?

At the time, Australia believed the answer was (b): an Indonesian Timor would give Australia the best outcome when it came to negotiating a seabed boundary in the Timor Sea. In a 1974 Policy Planning Paper, the Australian government reasoned that, since Indonesia had already given Australia such a favorable result in a similar seabed boundary negotiation, Indonesia would likely give Australia a similarly favorable deal for the seabed territory offshore from Timor. As a result, Australia was cautious about entering into any final seabed boundary delineations with Portugal. The political situation was likely to change, and there would be advantages in waiting for a more favorable government to gain control of the island territory:

We should press ahead with negotiations with Portugal on the Portuguese Timor seabed boundary, but bear in mind that the Indonesians would probably be prepared to accept the same compromise as they did in the negotiations already completed on the seabed boundary between our two countries. Such a compromise would be more acceptable to us than the present Portuguese position. For precisely this reason however, we should be careful not to be seen as pushing for self-government or independence for Portuguese Timor or for it to become part of Indonesia, as this would probably be interpreted as evidence of our self-interest in the seabed boundary dispute rather than a genuine concern for the future of Portuguese Timor. We should continue to keep a careful check on the activities of Australian commercial firms in Portuguese Timor.

(Policy Planning Paper, Canberra, May 3, 1974).

In other words, Australia should continue to engage in negotiations with Portugal to avoid the appearance of any impropriety, but it should take care that the negotiations did not actually culminate in an agreement.

Although Australia’s economic and foreign interests were best served by an Indonesian Timor, it was for precisely that reason that Australia wanted to avoid any appearance that it had any stake in Timor’s outcome. If seen to support Indonesia’s annexation of Timor, it would likely be viewed as doing so for self-serving commercial reasons. At the same time, neither did Australia wish to be seen as supporting a Portuguese Timor or an independent Timor, because doing so might have the effect of promoting either of those outcomes. Taking such a position (or appearing to take such a position) would also pose a risk of complicating its relationship with Indonesia.

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A Timeline of Events Leading up to Timor-Leste’s ICJ Claim Against Australia

Last week, the International Court of Justice heard three days of argument concerning Timor-Leste’s pending request for provisional measures in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). The case was brought by Timor-Leste following Australia’s execution of a search warrant at the office of Timor-Leste’s Canberra-based attorney. Australia claimed that the warrant was appropriately issued for national security purposes, and used it to obtain extensive electronic and paper files concerning Timor-Leste’s pending arbitration against Australia before a Hague tribunal. In that arbitration, Timor-Leste is seeking to overturn a 2007 treaty between Australia and Timor-Leste, as a result of Australia’s espionage on Timor-Leste’s internal communications during the course of negotiations.

Australia claims that it was justified in seizing Timor-Leste’s legal files because Timor-Leste’s evidence of Australia’s espionage was provided by a retired Australian spy. That spy, dubbed “Officer X,” informed Timor-Leste of the 2004 bugging operation as a result of his belief that the surveillance had been conducted for improper commercial purposes, rather than national security interests.

It is a complicated and messy situation, both legally and politically, but the significance of Australia’s seizure of Timor-Leste’s legal files, as well as Australia’s prior espionage against Timor-Leste’s government, can only be understood in the context of the history of the past treaty negotiations between the two countries. To give some background for future posts concerning the legal claims being raised by Timor-Leste and Australia, provided here is a timeline of events leading up to the recent case before the ICJ.

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Google Earth Collection of the Disputed Territorial Claims in the South China Sea, East China Sea, and the Sea of Japan

Trying to keep track of all the contested territorial claims in the South China Sea and East China Sea can be difficult. There are hundreds of islands, reefs, rocks, and submerged shoals that are in dispute, and the relevant coastal states don’t always agree on which of those categories is applicable to each specific maritime feature. To make matters worse, most of those features also have at least three different common names in use, which reflects the myriad of competing territorial claims throughout the region.

So in order to have an easy reference source regarding the locations and identities of the disputes rocks, reefs, and islands, I’ve created a Google Earth collection with placemarkers for China’s disputed maritime claims.

South China Sea Dispute

Right now, this Google Earth file provides indicators for (1) the geographical coordinates declared by China as its baselines for measuring the breadth of its territorial sea,  pursuant to Article 16 of UNCLOS, for (i) China’s mainland territories; (ii) the territorial sea and EEZ divisions agreed upon in the 2000 treaty between China and Vietnnam; (iii) China’s claimed territorial baselines in the Senkaku Islands; and (iv) China’s claimed territorial baselines in the Paracel Islands; (2) the submerged features, rocks, and islands of the Paracel Islands which form the basis of China’s claimed territorial sea baseline; (3) the submerged features and rocks in the Spratly Islands and in the Scarborough Shoal that are identified as areas of dispute in the Philippines’ Annex VII arbitration against China; and (4) China’s Nine-Dashed Line Map, outlining China’s nonspecific territorial claims in the South China Sea.

Using Google Earth to view the disputed territories is also helpful in that it provides access to a large collection of user-uploaded photos of the disputed maritime features — which is handy for getting a better idea of just how rock-like many of these “islands” are, or for what a “low-tide elevation” really looks like. It also allows you to play around with the various distances involved, which puts into perspective the tenuousness of some of the territorial sea and EEZ claims that are being asserted.

-Susan

Annex VII Arbitration, Annex V Mandatory Conciliation, and China’s Nine-Dashed Line

There are nine states that have coastline along the South China Sea: the People’s Republic of China, the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, and Vietnam. There have been ongoing disputes for decades between those nations concerning their competing claims of sovereignty and jurisdiction over the South China Sea, as well as the islands and reef features it contains, and most of those disputes have involved China.

The reason for China’s leading role in these disputes can be fairly understood from a review of China’s infamous Nine-Dotted Line. This map, a version of which was submitted by China to the UN in 2009, is China’s depiction of what a fair and equitable division of jurisdiction over the South China Sea should look like:

China alleges that the extent of its claims of sovereignty over the South China Sea are based solely on its historically established territories and its lawful jurisdictional entitlements under UNCLOS and international law. The fact that these historical and legal claims provide China with self-proclaimed sovereignty over 80% of the South China Sea is, one assumes, merely a coincidence.

China’s coastal neighbors have, understandably, objected to China’s overreaching in its territorial claims under the Nine-Dotted Line, and it has been a frequent point of diplomatic contention in recent decades. Previously, however, none of the disputes concerning the South China Sea territorial claims have been successfully adjudicated by an international tribunal.

That streak may now be coming to an end. On January 22, 2013, the Philippines — perhaps finally realizing it has little to lose from taking legal action over China’s encroachments on their territories, and potentially a lot of diplomatic street cred to be gained — the Philippines filed a Statement of Claim instituting arbitration against China under Annex VII of UNCLOS,

“with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea, the Government of the Philippines has the honor to submit the attached Notification under Article 287 and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the Statement of Claim on which the Notification is based, in order to initiate arbitral proceedings to clearly establish the sovereign rights and jurisdiction of the Philippines over its maritime entitlements in the West Philippine Sea.”

China was less than impressed with the Philippines’ notice of arbitration, and promptly returned the claim to the Philippines, stating that it declined to participate in the arbitration. In refusing to participate in the mandatory and binding arbitration procedure, China is taking a gamble. Not participating in the arbitration will greatly increase the odds of the arbitration tribunal rendering an unfavorable result. China is still hoping, however, that its usual rhetoric will prevail, and that the Philippines will stand down from the legal proceedings:

“The Chinese side hopes that the Philippine side keeps its word, not to take any action that magnifies and complicates the issue, responds positively to China’s proposals on establishing a bilateral regular consultation mechanism on maritime issues, resumes the operation of the Confidence Building Measures Mechanism (CBMs) as established between the two countries, and reverts to the right track of settling the disputes through bilateral negotiations.”

The reason for China’s refusal to play ball is obvious: China’s claims are devoid of any support under any customary international law or treaty. The longer China can go without having the unlawfulness of its claims officially decreed, the better China’s chances are at having its non-lawful claims take on the color of lawful action by dint of longstanding practice. As such, China has zero interest in allowing any tribunal, binding or unbinding, to render a legal decision concerning the validity of its maritime territorial claims.

China can, and has, found a way to somewhat legally assert its indefensible claims without facing legal challenge, through bullying any states that object into agreeing to submit the dispute to diplomatic negotiations rather than legal recourses. Article 280 of UNCLOS provides that “Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” As long as China can convince (or coerce) its maritime neighbors to agree to never-ending rounds of “bilateral negotiations” and “consensus building,” then the actual lawfulness of its claims will never be tested.

But in bilateral negotiations (conveniently, China always insists on bilateral, not multilateral), the strength of each party’s bargaining position is dependent on the weight of its political resources, not the weight of its legal arguments. This is precisely what the territorial divisions and corresponding dispute resolution procedures of UNCLOS were designed to avoid. UNCLOS’s provisions reflect a core goal of the parties in entering into the Convention, which was divorcing maritime sovereignty from maritime strength. Under UNCLOS, all coastal states, no matter the size of their GDP or their military, are, theoretically, entitled to the same breadth of their territorial seas and Exclusive Economic Zones (EEZ). UNCLOS was designed this way, in part, to prevent larger and more developed states from going on a maritime territory claiming rampage, done solely for the purpose of establishing a historical claim to occupation and use, with the goal of fully exploiting these territories at a future date. In short, there is no “use it or lose it” clause, under UNCLOS — developing states are not at a risk of losing the natural resources in their EEZ through inaction, and so do not need to divert resources towards shoring up their claims of sovereignty. The resources are theirs, and will be their waiting once a state’s economy develops to the point where it is able to harness and use those resources for itself.

China, in contrast, has subscribed to the exact opposite philosophy when it comes to maritime claims. China’s actions are consistent with its belief that, by virtue of its size and military power, it can claim any part of the ocean that is not actually within another state’s territorial seas. China often uses the language of law in asserting its maritime claims, but China’s actions indicate that it believes its claims are, in actuality, supported by the force of its military and not by the force of law.

In filing its Statement of Claim, the Philippines is now hoping to force China into either conforming its actions with its legal claims, or else be plainly shown to be a hypocrite who is not acting within the bounds of international law. It is not as if that would come as a surprise to anyone, but in terms of drumming up global support and united opposition against China’s maritime aggression, it could go a long way in the Philippines’ favor.

But whether or not the Philippines can lawfully bring its claims before an international tribunal is not a straightforward matter. True, Part XC of UNCLOS does provide for mandatory dispute resolution procedures, either through ITLOS, Annex VII arbitrations, the ICJ, or some other adjudicative body. But under Article 298, of UNCLOS, a limited exception is provided, and “a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more… categories of disputes.” China did in fact file a written declaration, dated August 25, 2006, which invoked the opt-out clause of Article 298, providing that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

Of the three categories of disputes in Article 298, it is the category described at 298(1)(a)(i) that is likely most relevant here: “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations[.]” Although the Philippines attempted to artfully draft its Statement of Claim to avoid implicating any of the disputes within Article 298’s categories, it is likely that at least some — though not all — of the Philippines’ claims would in fact encroach on the interpretation or application of articles 15, 74, and 83.

But this doesn’t mean the Philippines cannot have all of its claims decided by an international tribunal. China’s declaration under Article 298, regarding Section 2 of Part XV, does not affect China’s obligations under Section 1 of Part XV. This means China is still bound by Article 284’s conciliation requirements:

“A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure …

If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.”

So why didn’t the Philippines opt for mandatory conciliation? Likely because conciliation, even when mandatory, is non-binding on the parties, and the Philippines would prefer to get a judicial order in its favor. On the other hand, it is possible conciliation was already tried, and failed. In the Philippines’ Statement of Claim instituting an Annex VII ad hoc arbitration against China, the Philippines stated:

“Most recently, during a series of meetings in Manila in April 2012, the Parties once again exchanged views on these matters without arriving at a negotiated solution. As a result of the failure of negotiations, the Philippines later that month sent China a diplomatic note in which it invited China to agree to bring the dispute before an appropriate adjudicatory body. China declined the invitation.” (emphasis added)

I have not been able to locate a copy of the note, and cannot determine what the “appropriate adjudicatory body” was. It is possible that the Philippines did invite China to conciliation — but presumably, if it had, the Philippines would have specifically noted it. If the Philippines has invited China to conciliation, and China has refused the request, this would strengthen the Philippines’ claims considerably. Because UNCLOS provides for mandatory conciliation for disputes that fall within Article 298(1),

a State may, without prejudice to the obligations arising under section 1, declare … that it does not accept any … of the procedures provided for in section 2… provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2[.]

So even if China has exempted itself from the (immediate) force of Part XV, Section 2, China is still obligated to engage in mandatory conciliation under Annex 5, Article 11:

Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notification addressed to the other party or parties to the dispute.

Any party to the dispute, notified under paragraph 1, shall be obliged to submit to such proceedings.

If that is what happened here — if the Philippines did give written notification to China that it wanted the parties to engage in conciliation, and China declined — then the Philippines may have some argument that it was entitled to immediately proceed with an Annex VII arbitration, and that China cannot now validly object to the arbitration tribunal’s jurisdiction. This isn’t a watertight argument — the Philippines could have proceeded with mandatory conciliation, per Art. 12 of Annex V, even if China refused to participate — but the “provided that” language of Article 298 could be read to imply that Article 298’s opt-out procedures only apply on the condition that the party accepts submission of those disputes to mandatory conciliation. If China declined to comply with the condition precedent of Article 298’s opt-out provision, then perhaps the Philippines was entitled to proceed under Section 2 of Part XV.

Additionally, the Philippines does have a viable argument that its dispute with China (or at least part of it) is not within the class of disputes that is covered by China’s Art. 298 declaration. Mandatory conciliation might not have been required in this case at all. However, given the ambiguous and unsettled question of whether an Annex VII arbitration could exercise jurisdiction over the dispute submitted by the Philippines, it should be no surprise that the Philippines selected Rüdiger Wolfrum, the former president of ITLOS, as its designated arbitrator. Judge Wolfrum has already gone on the record stating that he believes UNCLOS tribunals have the jurisdiction to hear maritime delimitation disputes that arise in the context of UNCLOS provisions that do not directly concern delimitation, but may indirectly affect it:

there can be no doubt that disputes concerning the interpretation or application of other provisions, that is, those regarding the territorial sea, internal waters, baselines and closing lines, archipelagic baselines, the breadth of maritime zones and islands, are disputes concerning the Convention (see articles 3 to 15, 47, 48, 50, 57, 76 and 121).

Although far from conclusive, it does suggest Judge Wolfrum may be willing to find that a maritime delimitation dispute of the type brought by the Philippines arises under UNCLOS pursuant to articles other than 74 and 83. If so, that would give the Philippines at least one potential vote on the arbitration panel — and a persuasive one, at that — in favor of an Annex VII tribunal finding in favor of its own jurisdiction to adjudicate the Philippines’ claims.

-Susan

A Brief History of the Solemn Salute Under International Law, and the Competence of an Annex VII Abritral Tribunal to Award a Salute as Satisfaction

In my previous post on Argentina’s procedural victory over Ghana in the ARA Libertad case, I talked about how Argentina used the UNCLOS’ dispute resolution procedures to get an expedited provisional measures order from the International Tribunal of the Law of The Sea — and how, in effect, that provisional decision operated as an adjudication of the merits. Argentina’s victory was, in part, attributable to its success in convincing the Tribunal that awarding Ghana to release the ARA Libertad would not be a resolution of the case in full. In reality, however, the Tribunal’s provisional order made the underlying dispute moot, and that a decision on the merits would never be reached.

Judge Paik, in his Separate Opinion, reasoned that ordering the release of the ARA Libertad was not the same as awarding Argentina the principal relief it was seeking, because “the various forms of relief sought by Argentina in its Application instituting the Annex VII arbitration are obviously broader than those sought in the request for provisional measures.” But, as I pointed out in my last post, through the Tribunal’s provisional measures order,

Argentina did receive, in substance, all of the relief that it actually sought — because the “obviously broader” “various forms of relief” that Judge Paik makes reference to were largely superfluous demands that the arbitral tribunal would not have even had jurisdiction to grant. In fact, I suspect that Argentina was fully aware that no tribunal would ever grant the superfluous forms of relief it demanded in its original Statement of Claim — but that it deliberately through a few bogus demands into its claims anyway, so that, when it made a request for provisional relief, Argentina could argue that the “provisional” measures it was seeking were not identical to the relief it sought in its Application.

In particular, two of the remedies Argentina sought were bogus claims for relief; these requests were guaranteed to be left unawarded and unaddressed by ITLOS in its provisional ruling, guaranteeing that there would be, at least in theory, a question ‘on the merits’ to be decided by the Annex VII arbitral tribunal. As stated in Argentina’s Statement of Claim, here are the four forms of relief that Argentina was seeking to be awarded:

Thus, Argentina requests the arbitral tribunal to assert the international responsibility of Ghana, whereby such State must:

(1) immediately cease the violation of its international obligations as described in the preceding paragraph;

(2) pay to the Argentine Republic adequate compensation for all material losses caused;

(3) offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the Argentine Navy, ARA Fragata Libertad, preventing it from accomplishing its planned activities and ordering it to hand over the documentation and the flag locker to the Port Authority of Tema, Republic of Ghana;

(4) impose disciplinary sanctions on the officials of the Republic of Ghana directly responsible for the decisions by which such State has engaged in the violations of its aforesaid international obligations.

The first request, for the release of the ship, is restitutionary relief, which is the most fundamental form of reparation under international law. As stated in Art. 35 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, “[a] State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.”

Restitution, through the release of ARA Libertad, was the fundamental aim of Argentina’s institution of arbitration against Ghana. It is also precisely what Argentina was awarded by the International Tribunal of the Law of the Sea in provisional measures order.

Request number two is a straight-forward request for monetary compensation, in accordance with Art. 36 of the Draft Articles. Where restitution is insufficient relief to not repair a state’s breach in full, an award of monetary compensation — equivalent to a civil damages award — may be appropriate, to “cover any financially assessable damage.” In the Tribunal’s provisional award, Argentina did not receive compensation from Ghana — and to that extent, the Tribunal is correct that Argentina did not receive the full relief it sought. But Argentina’s financial damages were relatively limited, largely consisting of the costs of flying home a few hundred Argentinian cadets. The financial cost was not the state’s primary concern, and would not, in itself, have motivated an international arbitration.

In contrast to Argentina’s first two requests, the third and fourth requests made in its Statement of Claim 3 and 4 are demands for satisfaction, as described in Art. 37 of the Draft Articles:

Article 37. Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

There is reason to think that the inclusion of these requests in Argentina’s Statement of Claim was calculated; satisfaction in general is not a favored form of relief, and the satisfaction Argentina sought was phrased in a more insulting manner than was necessary. This may be because Argentina included these requests not because they actually wanted to receive what they were asking for, but because they wanted to convince the Tribunal — and as in fact it did convince Judge Paik — that there was daylight between Argentina’s demands for provisional relief and Argentina’s demands on the merits.

Argentina’s demands for satisfaction were not legitimate requests for relief, and they are not within the jurisdiction of any Annex VII arbitral tribunal to award. Although both the request that Ghana be forced to offer a “solemn salute” to Argentina’s flag and the request that the arbitral tribunal “impose disciplinary sanctions” against individual Ghanaian officials are illegitimate requests for satisfaction, in this post, I’ll only focus on why an Annex VII arbitral tribunal could not have rightfully awarded the relief sought.

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