Maritime Territorialization, UNCLOS and the Timor Sea Dispute.

• Author: Strating, Rebecca

In recent years, maritime sovereignty disputes have become highly visible microcosms of broader contests in the Asia-Pacific region. Materially, the seas matter because: they constitute significant trading thoroughfares; some seabeds are estimated to hold significant quantities of hydrocarbon resources; (1) they are often located in contested areas; and dwindling fishing stocks affect the livelihoods of coastal communities. (2) These material factors have provided potential flashpoints for conflict in the maritime domain including territorial disputes over islands and reefs in the South China and East China Seas. Yet, these conflicts are also motivated by ideational factors. Maritime sovereign claims reflect a form of symbolic politics that links national identity, status and prestige to the defence of maritime possessions.

This article examines the way that maritime spaces have become increasingly linked to, and conflated with, state sovereignty in public discourses, a process articulated as "maritime territorialization". (3) Negotiations that led to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) were conducted during three conferences: UNCLOS I from 1956 to 1958; UNCLOS II in 1960; and UNCLOS III from 1973 to 1982. (4) This article focuses predominantly on the codification of the international law of the sea through the third conference. This conference introduced a layered sovereignty regime that provided new incentives for states to extend the concept of sovereignty seawards, generating new disputes over overlapping jurisdictions and radically transforming and complicating boundary negotiations and entitlements. (5) UNCLOS is nearly universally applicable, with 168 of the world's 193 states party to the Convention. (6) The previous distinctions between the two sets of regimes governing the recognition of "land" and "sea" possessions and entitlements have become increasingly blurred by the sovereignty discourses of states claiming maritime territory since UNCLOS I in 1958. (7) Particularly in cases involving post-colonial states, sovereignty claims have evolved from being about material resources to ideational "symbolic" politics that link maritime spaces to national identity, and position "sea territory" as necessary for completing sovereignty and independence.

Maritime Southeast Asian states such as the Philippines, Vietnam, Malaysia and Indonesia are prolific players in the contests over territory and maritime jurisdictional rights in areas such as the South China Sea. Less well understood, however, is the dispute between the small Southeast Asian state of Timor-Leste and its much larger neighbour Australia over maritime boundaries and oil and gas reserves in the Timor Sea. Principally, the Timor Sea constitutes a distinctive kind of dispute from those most well understood in Southeast Asia. Whereas other Southeast Asian disputes often involve claims over territory (e.g. islands, rocks, reefs etc.) and their adjacent maritime zones, the Timor Sea dispute is over maritime boundaries and does not involve territory as it is traditionally conceived. While sovereignty is invoked in most maritime disputes, in this case, there is no dispute over islands. This article uses the Timor Sea dispute as a case study of maritime territorialization. At the heart of this dispute are the oil and gas deposits located in and around the so-called "Timor Gap". The Timor Gap refers to the gap created when Australia and Indonesia negotiated their maritime boundaries in 1972. The Timor Gap is the part of the boundary the two countries could not delineate because East Timor's then colonial power, Portugal, refused to participate. (8) This article examines the ideational sovereign narratives employed in Timor-Leste's public diplomacy to support the country's claims around maritime boundaries and the lucrative but contested Greater Sunrise, a gas field located between the coastlines of Australia, Timor-Leste and Indonesia that is estimated to contain 5.1 trillion cubic feet of natural gas and 226 million barrels of condensate. (9)

The article examines the specific maritime territorialization discourses employed by Timor-Leste's leaders and supporters. There are three key strands to these sovereignty discourses. The first propagates the notion that Timor-Leste "owns" the maritime territory and resources in the Timor Sea. Popular narratives cast Australia as a thief that is "stealing" Timor-Leste's hydrocarbons and maritime territory in violation of the country's sovereignty. (10) In contrast, Timor-Leste is positioned as a victim that has been unfairly denied its sovereign entitlements, in terms of both rights to permanent maritime boundaries, and as the rightful owner of Greater Sunrise. The second strand is that Timor-Leste's sovereignty is incomplete and its full independence has been denied as a result of the absence of settled maritime boundaries. The implication here is that maritime area is the equivalent of land territory in the conception of what constitutes sovereignty. Stemming from the first two strands, the third dimension presents Australia as an occupier of Timorese sovereign territory. The narratives use the historical legacies of East Timor's 24-year struggle for independence from Indonesia as a way of presenting Australia as the "occupier" of maritime territory that rightfully belongs to Timor-Leste under international law. While these sovereignty narratives only constitute one aspect of Timor-Leste's broader public diplomacy strategy, they highlight Timor-Leste's efforts to territorialize the sea.

The article concludes by considering the outcomes and implications of Timor-Leste's maritime territorialization strategy. Maritime territorialization has been an effective tool of moral suasion for Timor-Leste as they draw upon Australia's alleged complicity in Indonesia's invasion and occupation of East Timor in December 1975. However, it has been the non-binding United Nations Compulsory Conciliation (UNCC) processes initiated by Timor-Leste under Annex V of UNCLOS that have provided a pathway to compromise between the two states. (11) So far, the foreign policy actions of Timor-Leste demonstrate the ways in which these symbolic sovereign claims for possessing maritime boundaries have come to shape its conception of the country's national interests. Maritime sovereignty narratives may ultimately entrap (12) states into pursuing and defending claims in order to appease domestic audiences as these become incorporated into "the mythos of statehood". (13)

Maritime Territorialization and UNCLOS

The purpose of this section is to understand the role of UNCLOS in transforming the concept of territorial sovereignty. According to Edyta Roszko, the term "maritime territorialization" refers to the ways in which states treat the sea as "land", and the activities that states undergo to "perform" sovereignty in territorial seas and islands. (14) In this article, the term is used to describe the ways in which maritime territory has become increasingly linked to state sovereignty, the changes in the jurisdictional status applied to maritime territory and the attendant processes of distributing sovereign entitlements. Territorialization is highlighted in the ways in which the seas are becoming increasingly viewed as analogous to land.

To demonstrate this territorialization, it is useful to understand some of the history of land and sea regimes. In international relations, territorial boundaries have long provided the "framework of independence and security in the political order". (15) Under the Westphalian order, territory was indivisible from statehood: the hallmark of modern states is exclusive sovereignty over defined territory. According to the 1933 Montevideo Convention, a state possesses the following qualities: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. (16) Maritime space, however, beyond the 3 nautical miles (nm) "cannon-shot rule" was long regarded (albeit not codified) as a global commons under principles developed by the Dutch legal scholar Hugo Grotius, who argued that waters could not be occupied or seized, and therefore could not be exclusively owned as property. (17) The 1958 Conference codified multiple zones of maritime jurisdiction, including the continental shelf claims employed by Australia in its approach to the Timor Sea. The 1982 UNCLOS extended the international law on maritime jurisdiction. Prior to the 1958 Conference, the oceans were viewed as res communis (available to all) largely due to the practical difficulties with occupying water, and in establishing exclusive title. (18) The sea was not analogous to land for the purposes of delineating sovereign jurisdictions.

Importantly for the character of maritime disputes in East Asia, a clear distinction was made between land and sea during the period of European colonialism: while the sea remained open to all, it was the lands that came under the rule of colonial authorities. (19) In the post-World War II period, territorialization of nationhood enabled new states to exercise self-determination, as "territory conveys the necessary physical support for these previous colonised 'nations' or 'people' to achieve formal independence from colonial control". (20) At the same time, however, the various UNCLOS negotiations for determining new rules of the sea were necessitated by the technological advances that were changing the relationships between societies and the seas after World War II. (21) Advances in technical areas made appropriation and delimitation of water areas possible. Further, as the rich hydrocarbon resources in the seabed became more easily exploitable, states became desirous of maritime territory because of its economic value, and creating titles ensured private companies would be prepared to enter into stable leasing arrangements.

The...