Comment by Andrew McNaughtan – When the Australian and Indonesian foreign ministers toasted the signing of the Timor Gap treaty in 1989 it was presented as a diplomatic coup and a sign of a friendly, co-operative relationship.
The reality was different. The treaty was an implicit acknowledgment that the governments had failed to agree on a seabed boundary because of some thorny political issues.
The significant petroleum potential of the Timor Sea has influenced strategy and politics since before Indonesia invaded East Timor, and sovereignty over these resources remains a controversial issue.
In 1972 Canberra and Jakarta signed a seabed boundary agreement that many considered favourable to Australia. Canberra had argued that its ocean territory was determined by its continental shelf, resulting in a seabed boundary much nearer Indonesia. However, Australia and Portugal could not agree on a maritime border between Australia and what was then Portuguese Timor, now East Timor. This resulted in a gap in the boundary known as the Timor Gap.
The Portuguese felt the division should be half way between the two coastlines because they were aware this was about to become the new standard. This median-line norm for boundaries between opposing coastlines was subsequently introduced under the United Nations Convention on the Law of the Sea in 1982 and confirmed by International Court of Justice case law.
Both governments realised the seabed boundary, giving sovereignty over the oil and gas resources, was of vital economic importance. In the early 1970s Portugal and Australia issued overlapping exploration permits in the disputed area to different oil companies to strengthen their competing sovereignty claims.
Australia felt a line should simply be drawn to connect the (favourable) boundaries it had just agreed with Indonesia to the east and west, whereas Portugal expected a mid-line boundary (favourable to Lisbon) would ultimately be adopted. This confusion and frustration was a factor in Gough Whitlam's well publicised dislike for the Portuguese.
In 1975 the attitude of the Department of Foreign Affairs and ultimately the Australian Government was clearly articulated in a secret cable to Canberra from Australia's Ambassador to Jakarta, Richard Woolcott.
He suggested that "closing the present gap in the agreed sea border could be much more readily negotiated with Indonesia ... than with Portugal or independent Portuguese Timor". He also said, alluding to the potential resource wealth, that the Department of Minerals and Energy would have an interest in this.
The view that it would be strategically and economically advantageous to Australia if Indonesia took East Timor was a factor in Canberra's passivity about the invasion. Australia had every reason to expect Indonesia would "do the right thing" and simply draw a line connecting existing dots on the map, giving Australian sovereignty over the Gap's potentially vast oil and gas wealth.
Australia was then confronted with the brutality of the Indonesian occupation. This made it politically difficult, and legally dubious, to recognise formally Indonesian sovereignty over East Timor. Yet such recognition was a prerequisite for negotiating with Indonesia to settle the seabed boundary between occupied East Timor and Australia. Canberra could not legally negotiate with a country that it did not recognise as sovereign.
Australia became an international advocate for Indonesia's occupation. In 1979, after it was hoped the Timorese resistance had been destroyed, Australia began negotiations with Indonesia on the Timor Gap, signifying Canberra's formal recognition of the annexation of East Timor.
However, Australia ultimately would have reason to be disappointed with the outcome of the talks. Indonesia, believing it had given too much away in the 1972 agreement and miffed that there had been criticism from Australia over its invasion of Timor, did not agree to simply connect the seabed boundaries to the east and west.
It now did not need to concede so much territory in this oil-rich area since it had already achieved its aim – Australia had been manoeuvred into accepting Indonesian sovereignty over East Timor. Jakarta wanted more territory and was playing hard ball. It now sought a mid-line boundary agreement that would be consistent with the new international convention.
Such an agreement would be politically unpalatable and unacceptable to Australia. Apart from the negative financial impact, Canberra, for all its trouble in becoming an ally in Indonesia's takeover of East Timor, had been given a worse deal in the Gap than on either side of it.
Observers would see a falling out among thieves, with Australia taken in and duped by Indonesia. So ensued 10 years of wrangling before a tortuous political compromise could be worked out. The result – the establishment of a Zone of Co-operation under the Timor Gap treaty – was a complex agreement that blurred the boundaries in a way that made it hard for most outsiders to interpret.
The Timor Gap treaty, far from being an enduring resolution of the disputed border, was the outcome of a failure to settle the underlying seabed boundary dispute.
The original Timor Gap treaty is now defunct, Indonesia having formally withdrawn. There is now a temporary memorandum of understanding between the interim UN administration, representing the East Timorese, and Canberra, pending final resolution of the issue.
A Canadian authority on international maritime boundary law, Jeffrey Smith, who is about to publish a treatise on an independent East Timor's maritime entitlements, says there is a unique opportunity to clarify the boundaries of one of the few disputed zones in the world. The East Timorese could almost certainly claim sovereignty to the mid-line of the Gap and receive significantly more desperately needed revenue.
[Andrew McNaughtan, a Sydney doctor, is convener of the Australia East Timor Association.]