THE PEACEFUL SETTLEMENT OF LAW OF THE SEA DISPUTES:

CONCILIATION BETWEEN AUSTRALIA AND TIMOR-LESTE

PAUL BAWEJA* **

I INTRODUCTION
This article investigates the efficacy of the 1982 United Nations Convention on the
Law of the Sea (‘UNCLOS’)1 dispute settlement processes. This article employs the
case study approach to examine the peaceful dispute settlement mechanism of
conciliation. It reviews the Australia and Timor-Leste (‘the State Parties’) maritime
boundary delimitation dispute. This article acknowledges there exist several
different approaches to maritime dispute settlement in the International Law of the
Sea. Article 287 of UNCLOS provides for a ‘choice of procedure’2 in the settlement
of maritime disputes. These procedures include adjudication by the International
Tribunal for the Law of the Sea (‘ITLOS’),3 adjudication by the International Court
of Justice (‘ICJ’),4 determination by an arbitral tribunal pursuant to Annex VII of
UNCLOS,5 or ruling by a special tribunal pursuant to Annex VIII of UNCLOS.6

This article examines conciliation invoked by Timor-Leste against Australia, with

respect to their maritime boundary dispute. Article 298 of UNCLOS provides for
conciliation between state parties to peacefully settle their maritime disputes in
accordance with the International Law of the Sea.7 First, this article examines what
peaceful dispute settlement mechanisms are available to states. Second, this article
specifically investigates how conciliation has developed in international law. Third,
this article explores how conciliation functions as a peaceful dispute settlement
mechanism. Fourth, this article considers what maritime issues the Timor-Leste and
Australia dispute encapsulated. Fifth, to explain the efficacy of conciliation in Timor-
Leste and Australia’s maritime dispute, this article engages in novel theory building.
It proposes the ‘Four Factor Conciliation’ Theory (‘FFC Theory’). The FFC Theory
posits four primary factors are responsible for conciliation’s viability in settling
international disputes: (1) non-adversarial nature of conciliation, (2) composition of

* BCom (Macquarie University), GradDipCA (Institute of Chartered Accountants

Australia), MBA (Macquarie University), MDipl(Adv) (Australian National
University), JD Candidate (University of New South Wales).
** The author is grateful to Professor Natalie Klein at the Faculty of Law and Justice
at the University of New South Wales for her invaluable comments on the paper.
1
United Nations Convention on the Law of the Sea, opened for signature 10
December 1982, 1833 UNTS 397 (entered into force 16 November 1994) art 287
(‘UNCLOS’).
2
Ibid art 287.
3
Ibid art 287(1)(a).
4
Ibid art 287 (1)(b).
5
Ibid annex VII.
6
Ibid annex VIII.
7
Ibid art 298(1).
the commission, (3) confidentiality of proceedings, and (4) flexibility of conciliation.
Last but not least, this article presents concluding observations.

II WHAT ARE THE OPTIONS FOR THE PEACEFUL

SETTLEMENT OF INTERNATIONAL DISPUTES?
According to the Proelss Commentary on UNCLOS, an international dispute ‘should
be understood in its ordinary meaning in international law’.8 The foundation for the
peaceful settlement of international disputes is codified in Article 33(1) of the
Charter of the United Nations (‘UN Charter’).9 This objective is reinforced by
Article 2(3) of the UN Charter, which calls on all member states to settle their
international disputes by peaceful means, so that ‘international peace and security,
and justice are not endangered’.10 In addition, Article 2(4) of the UN Charter
reinforces the peremptory norm on the prohibition on the use of force in international
relations.11 In accordance with international law, states are at liberty to pursue a broad
range of dispute settlement procedures, including negotiation, consultation,
mediation, conciliation, arbitration, enquiry, judicial settlement, or court
adjudication to peacefully settle their international disputes.12 In addition, Article
33(1) of the UN Charter stipulates that member states can resort to ‘regional agencies
or arrangements, or other peaceful means of their own choice’13 to settle their
international disputes. Dispute settlement procedures can be voluntary or
compulsory, and they result in binding or non-binding determinations.14 Tanaka
describes the approach of UNCLOS to the peaceful settlement of maritime disputes
as a ‘two-tier system’.15

In Ghana v Côte d'Ivoire16 the Special Chamber affirmed, ‘the appropriate

delimitation methodology – if the states cannot agree – is determined through the
dispute settlement mechanism and should achieve an equitable solution’.17 Thus,
prior to contentious proceedings, states must carefully consider which method of
dispute settlement is in their national interest. There are advantages and

8
Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A
Commentary (Beck, Hart, Nomos, 2017) 1815 (‘Proelss Commentary on
UNCLOS’).
9
Charter of the United Nations art 33(1) (‘UN Charter’).
10
Ibid art 2(3).
11
Ibid art 2(4).
12
Mary Ellen O’Connell, International Dispute Resolution: Cases and Materials
(Carolina Academic Press, 2nd ed, 2012) 19.
13
UN Charter (n 9) art 33(1).
14
Sienho Yee, ‘Conciliation and the 1982 UN Convention on the Law of the Sea’
(2013) 44 Ocean Development and International Law 315, 316.
15
Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press,
4th ed, 2023) 534.
16
Dispute Concerning Delimitation of the Maritime Boundary between Ghana and
Côte d'Ivoire in the Atlantic Ocean (Ghana v Côte d'Ivoire) (Judgement)
(International Tribunal for the Law of the Sea, Case No 23, 23 September 2017)
(‘Ghana v Côte d'Ivoire’).
17
Ibid [281].
disadvantages associated with each dispute settlement mechanism. State parties to
UNCLOS have several ‘built-in procedures’18 to peacefully settle their maritime
disputes. One of these procedures is recourse to the ITLOS.19 The International Law
of the Sea provides for the peaceful settlement of maritime disputes pursuant to Part
XV of UNCLOS.20 Article 279 of UNCLOS imposes an obligation upon state parties
to peacefully settle their maritime disputes.21 This obligation is complemented by
Article 280 of UNCLOS, which encourages state parties to settle their maritime
disputes by ‘any peaceful means’.22

Article 287 of UNCLOS provides for a ‘choice of procedure’23 concerning maritime

dispute settlement between state parties. In the International Law of the Sea, there
are four distinct methods to settle maritime disputes between states. One, state parties
have their maritime dispute adjudicated by the ITLOS in connection with Annex VI
of UNCLOS,24 which is governed by the Statute of the ITLOS.25 Two, state parties
commence contentious proceedings in the ICJ.26 In the event the ICJ possesses
jurisdiction to arbitrate the maritime dispute, it will determine the merits of the
international dispute and issue its final ruling. Three, state parties seek a
determination by an arbitral tribunal in conjunction with Annex VII of UNCLOS.27
This arbitration procedure entails a binding outcome on state parties to the
contentious proceedings. Four, state parties settle their maritime disputes vis-à-vis a
special arbitral tribunal enacted in accordance with Annex VIII of UNCLOS.28 The
special arbitral tribunal will issue its binding ruling to the concerned state parties.
The aforementioned four dispute settlement procedures enshrined in Article 287 of
UNCLOS were devised by the Working Group in Montreux at the 1975 Geneva
Session.29 Therefore, they are commonly referred to as the ‘Montreux formula’ for
maritime dispute settlement.

In international law, according to the foundational doctrine of forum prorogatum,

sovereign states cannot be compelled to settle their maritime disputes at the ICJ, the
ITLOS, or a tribunal established in accordance with UNCLOS, without the consent
of the state party.30 However, once state consent has been secured, then contentious
proceedings can be commenced against that state. In the case of proceedings at the

18
Tanaka (n 15) 532.
19
UNCLOS (n 1) art 287(1)(a).
20
Ibid Part XV.
21
Ibid art 279.
22
Ibid art 280.
23
Ibid art 287(1).
24
Ibid art 287(1)(a).
25
Ibid annex VI: Statute for the International Tribunal for the Law of the Sea.
26
Ibid art 287(1)(b).
27
Ibid art 287(1)(c).
28
Ibid art 287(1)(d).
29
A O Adede, ‘The Basic Structure of the Dispute Settlement Part of the Law of the
Sea Convention’ (1982) 11 Ocean Development and International Law 130, 131.
30
Yaël Ronen, Forum Prorogatum, Oxford Public International Law, (Web Page, 16
November 2024) <[Link]
mpeipro/e1575.013.1575/law-mpeipro-e1575>.
ITLOS, the Tribunal’s judgement is characterised by ‘finality and binding force’.31
Whereas proceedings at the ICJ give rise to the Court’s ruling which ‘has no binding
force except between the parties and in respect of that particular case’.32 The
aforementioned assertions are qualified by the fact, that where a state has ratified
UNCLOS, that state party provides its advanced consent to engage in the
‘automatically established basis’33 for compulsory conciliation.34 Alternatively,
when a state has previously accepted the ICJ’s compulsory jurisdiction,35 then an
aggrieved state may unilaterally commence proceedings at the ICJ, against that state
party on this basis. In relation to the International Law of the Sea, when a sovereign
state ratifies UNCLOS, it assumes the obligation to engage in compulsory
conciliation, subject to the conditions specified in the Convention.36

Bangladesh v Myanmar37 which was determined by the ITLOS also concerned a

maritime boundary delimitation dispute. This international dispute acknowledged
‘the issue of adjusting the provisional line in maritime boundary delimitation is little
addressed in case law, and has not been clarified in the provisions of the
Convention’.38 In this maritime dispute, the judicial reasoning of the ITLOS
demonstrated that states are disinclined to have their maritime boundaries delimited
by an international judicial institution. In such situations, conciliation offers states a
pragmatic approach to peacefully settle their maritime disputes. Unlike an
international judicial institution providing its binding determination upon the state
parties, conciliation provides greater flexibility over the dispute settlement process.
The Commission’s informal procedures pertaining to conciliation aim to conclude
an amicable settlement to the maritime dispute concerning the state parties by way
of recommendations. Not to mention, the Commission’s non-binding
recommendations factor into consideration the interests and positions of the
respective state parties, in a manner that the ICJ or the ITLOS do not.

III HOW HAS CONCILIATION DEVELOPED?

Conciliation is a process aimed at securing the peaceful settlement of disputes
amongst sovereign states in international relations. Conciliation has a long-standing
history in the peaceful settlement of international disputes. According to Koopmans,
conciliation developed out of inquiry commissions aimed at settling inter-state
disputes, as stipulated in the 1899 Hague Convention and the 1907 Hague

31
UNCLOS (n 1) annex VI art 33.
32
Statute of the International Court of Justice art 59 (‘ICJ Statute’).
33
Dai Tamada, ‘The Timor Sea Conciliation: The Unique Mechanism of Dispute
Settlement’ (2020) 31(1) European Journal of International Law 321, 323.
34
UNCLOS (n 1) art 297, 298.
35
ICJ Statute (n 32) art 36(2).
36
UNCLOS (n 1) art 297(2)(b), 297(3)(b), 298(1)(a)(i).
37
Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh
and Myanmar in the Bay of Bengal (Bangladesh v Myanmar) (Judgement)
(International Tribunal for the Law of the Sea, Case No 16, 14 March 2012).
(‘Bangladesh v Myanmar’).
38
Ibid [58].
Convention.39 Article 33(1) of the 1945 UN Charter categorically references
conciliation as a method to peacefully settle international disputes.40 In addition,
Article 66 of the 1969 Vienna Convention on the Law of Treaties,41 recognises
conciliation as a dispute settlement mechanism.

The United Nations (‘UN’) has been instrumental in promoting conciliation as a

mechanism to peacefully settle international disputes between member states. For
example, consider the UN General Assembly passed the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation
among States.42 In addition, the UN General Assembly adopted the 1982 Manilla
Declaration on the Peaceful Settlement of International Disputes.43 Furthermore, in
1995 the UN General Assembly agreed to the United Nations Model Rules for the
Conciliation of Disputes Between States.44 The United Nations invaluable
contribution has promoted the ideal of peacefully settling international disputes
between member states.

With respect to the International Law of the Sea, the Jan Mayen Commission was
the impetus underwriting the inclusion of conciliation into UNCLOS. Established in
1980, the Jan Mayen Commission was a voluntary conciliation between Iceland and
Norway. The state parties maritime dispute concerned the continental shelf, as well
as petroleum and fishery rights in relation to Jan Mayen Island. The Jan Mayen
Commission assisted the state parties to conclude an acceptable settlement
concerning their maritime dispute. Rather than adopt a traditional method
concerning maritime territorial boundary delimitation, the Commission proposed a
‘joint development agreement for hydrocarbon production’.45 The Commission was
successful in assisting Iceland and Norway to achieve a mutually acceptable
settlement.

Beyond the peaceful settlement of Iceland and Norway’s maritime dispute, the Jan
Mayen Commission influenced the drafting of UNCLOS. During the Third United
Nations Conference on the Law of the Sea (‘the Third Conference’), the negotiating
states were unable to reach a unanimous agreement on the proposed dispute

39
Sven Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State
Conciliation (TMC Asser Press, 2008) 77.
40
UN Charter (n 9) art 33(1).
41
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969,
1155 UNTS 331 (entered into force 27 January 1980) art 66.
42
United Nations Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation among States, GA Res 2625 (XXV), UN Doc
A/RES/2625(XXV) (adopted 24 October 1970).
43
United Nations Manilla Declaration on the Peaceful Settlement of International
Disputes, GA Res 37/10, UN Doc A/RES/37/10 (adopted 15 November 1982).
44
United Nations Model Rules for the Conciliation of Disputes Between States, GA
Res 50/50, UN Doc A/RES/50/50 (adopted 11 December 1995).
45
Reports of International Arbitral Awards, Conciliation Commission on the
Continental Shelf area between Iceland and Jan Mayen: Report and
recommendations to the governments of Iceland and Norway, (Report, June 1981)
24.
settlement mechanisms.46 As a result, the negotiating states agreed that compulsory
conciliation constituted an amenable procedure for the settlement of maritime
disputes. President of the Third Conference, Koh characterised the inclusion of
compulsory conciliation in UNCLOS as a ‘significant contribution of the
Convention’47 as it promotes the just ‘cause of peace’48 between states.

IV HOW DOES CONCILIATION SETTLE INTERNATIONAL

DISPUTES?
Within UNCLOS, Article 284 offers state parties the option of voluntary conciliation
to peacefully settle their maritime disputes.49 Whereas Articles 297 and 298 of
UNCLOS provide for compulsory conciliation between state parties.50 Unlike
contentious proceedings at the ICJ or the ITLOS, the conciliation outcome per se is
not legally binding upon the concerned state parties. However, for state parties that
have ratified UNCLOS, the process of conciliation is compulsory, pursuant to the
limitations and exceptions contained within Articles 297 and 298 of UNCLOS.51

Conciliation involves instituting a Commission to settle maritime disputes between

the state parties. The Commission is given effect by the concerned state parties.
Nonetheless, the Commission functions in an independent manner. The Commission
employs its own initiative to investigate the facts of the maritime dispute, examine
the maritime issues in disagreement, and resolve the salient questions of the
International Law of the Sea. The procedural matters pertaining to conciliation are
governed by Annex V of UNCLOS.52 The claimant state appoints two conciliators to
the Commission,53 and the respondent state has the same right.54 If the respondent
state fails to appoint two conciliators, this does not impede the formation of the
Commission.55 The claimant state can request the UN Secretary-General to appoint
two conciliators for the respondent state from a list of conciliators.56 Once the four
conciliators are determined, then within thirty days they must collectively agree on
the appointment of a chairperson.57 In the event the four conciliators cannot agree on
the chairperson, they may request the UN Secretary-General to determine this
appointment.58

46
Louis Sohn and John Noyes, Cases and Materials on the Law of the Sea
(Transnational Publishers, 2004) 819.
47
Tommy Koh, ‘The Third United Nations Conference on the Law of the Sea: What
was accomplished?’ (1983) 46(2) Law and Contemporary Problems 5, 8.
48
Ibid.
49
UNCLOS (n 1) art 284.
50
Ibid art 297(2)(b), art 297(3)(b), art 298(1)(a).
51
Ibid art 297, 298.
52
Ibid annex V.
53
Ibid annex V art 3(b).
54
Ibid annex V art 3(c).
55
Ibid annex V art 12.
56
Ibid annex V art 3.
57
Ibid annex V art 3(d).
58
Ibid annex V art 3(e).
The respondent state is entitled to seek a review of the Commission’s jurisdiction to
intervene in its maritime dispute with the claimant state. In accordance with
UNCLOS, the Commission possesses the legal authority to determine its
jurisdiction.59 Once the preliminary question of jurisdiction has been settled, and if
it is established that the Commission has jurisdiction, then the Commission informs
itself on the processes that are conducive to the conciliation effort.60 The
Commission exercises its agency to determine how the conciliation proceeds and
what methods of engagement are beneficial. The paradox of compulsory conciliation
is that the state parties are bound by the Commission’s determination on jurisdiction;
however, they are not bound by the Commission’s recommendations in its final
report. Brown argues that states are ‘obliged to accept nothing more than what was
euphemistically referred to in the Conference proceedings as compulsory
conciliation’.61 Brown is technically correct, however, the potential of conciliation
to assist states to peacefully settle their maritime disputes must not be
underestimated.

Once the Commission has received oral and written submissions, engaged in
consultations, and conducted its inquiries with the state parties, then it proposes non-
binding recommendations in its final report. Unlike the ICJ or the ITLOS, there are
no dissenting opinions in the Commission’s final report. The Commission’s final
report contains non-binding recommendations for the state parties to consider
adopting to peacefully settle their maritime dispute. Conciliation’s fundamental
purpose is to promote confidence-building measures and create consensus between
the state parties. The Commission assists the state parties to reach an ‘amicable
settlement’.62 Article 7(1) of Annex V in UNCLOS mandates that the Commission
shall report within twelve months and its final report must be deposited with the UN
Secretary-General.63 Article 7(2) of Annex V in UNCLOS affirms the non-binding
nature of the Commission’s final report and its recommendations.64

V WHAT WAS THE TIMOR-LESTE AND AUSTRALIA

MARITIME DISPUTE?
Timor-Leste and Australia are coastal states in the Asia-Pacific region. They have
rights pursuant to Article 56(1)(a) of UNCLOS to exploit natural resources within
their Exclusive Economic Zone (‘EEZ’).65 Article 57 of UNCLOS specifies that a
coastal state’s EEZ is limited to 200 nautical miles from its baseline.66 Klein
acknowledges the issue of contested maritime boundaries is an ‘inevitable
consequence of the increased attribution of sovereign rights and jurisdiction to

59
Ibid annex V art 13.
60
Ibid annex V art 4.
61
E D Brown, ‘Dispute Settlement and the Law of the Sea: The UN Convention
Regime’ (1997) 21(1) Marine Policy 17, 24.
62
UNCLOS (n 1) annex V art 5.
63
Ibid annex V art 7(1).
64
Ibid annex V art 7(2).
65
Ibid part V art 56(1)(a).
66
Ibid part V art 57.
coastal states through the EEZ’.67 The narrow maritime distance between Timor-
Leste and Australia, which is less than 300 nautical miles, indicates these two states
have overlapping claims for their EEZ. This legal quandary is a product of the two
coastal states’ geography and it requires a maritime boundary delimitation.

This article’s examination of the parameters of this maritime dispute are confined
from 2002, when Timor-Leste became an independent and sovereign state, up to
2016, when Timor-Leste commenced compulsory conciliation against Australia.
This article acknowledges that the origins of this maritime dispute go far back in
history, to when Timor-Leste was subject to colonial rule by Portugal. Thereafter,
Timor-Leste was subject to Indonesian sovereignty. Finally, Timor-Leste secured its
independence, in accordance with a transitional arrangement under the auspices of
the United Nations Transitional Administration in East Timor (‘UNTAET’)
established by the UN Security Council.68

On 20 May 2002, Timor-Leste gained its independence. As a sovereign state, one of

Timor-Leste’s first foreign policy objectives was to conclude the 2002 Timor Sea
Treaty with Australia.69 The Timor Sea Treaty respected the 90:10 divide in favour
of Timor-Leste concerning petroleum extraction in the Joint Petroleum Development
Area (‘JPDA’).70 The Timor Sea Treaty also honoured the 79.90:20.10 divide in
favour of Australia concerning the petroleum extraction in the Greater Sunrise.71
Nonetheless, this treaty did not settle the paramount issue of a permanent maritime
boundary delimitation between the two coastal states.

On 6 March 2003, the Unitisation Agreement was concluded between Timor-Leste

and Australia with respect to the Greater Sunrise.72 The Unitisation Agreement
provided a foundation for the economic development of the Greater Sunrise. In
addition, this agreement concluded commercial, environmental, and legal issues,
such as taxation, health, safety, employment, training, and customs rights.73 Article
12 of the 2003 Unitisation Agreement stipulated that petroleum extraction would not
proceed, until both state parties approved a development plan.74 As a result, bilateral
negotiations continued between Timor-Leste and Australia concerning the Greater
Sunrise.

67
Natalie Klein, ‘Provisional Measures and Provisional Arrangements in Maritime
Boundary Disputes’ (2006) 21(4) International Journal of Marine and Coastal
Law 423, 426.
68
SC Res 1272, UN Doc S/RES/1272 (25 October 1999).
69
Timor Sea Treaty between the Government of East Timor and the Government of
Australia, opened for signature 20 May 2002, 2258 UNTS 3, (entered into force 2
April 2003) (‘Timor Sea Treaty’).
70
Ibid art 4(a).
71
Ibid annex E(a).
72
Agreement between the Government of Australia and the Government of Timor-
Leste relating to the Unitisation of the Sunrise Troubadour Fields, opened for
signature 6 March 2007, 2483 UNTS 317, (entered into force 23 February 2007)
(‘Unitisation Agreement’).
73
Ibid art 11, 18, 19, 22.
74
Ibid art 12.
In 2006, the two coastal states concluded the Certain Maritime Arrangements in the
Timor Sea Treaty (‘CMATS Treaty’).75 The 2006 CMATS Treaty ensured an equitable
distribution of profits from natural resource extraction in the Greater Sunrise. The
2002 Timor Sea Treaty division of 79.90:20.10 in favour of Australia, was replaced
with an equal 50:50 division of profits between the two coastal states. Another
substantive element within the 2006 CMATS Treaty was the procedure by which the
State Parties agreed to settle their maritime boundary dispute. Article 11 of the 2006
CMATS Treaty enshrined negotiation as the preferred method of dispute resolution,76
replacing arbitration in the 2002 Timor Sea Treaty. Notwithstanding the agreement
to pursue bilateral negotiations, the moratorium contained within Article 4 of the
2006 CMATS Treaty 77 restricted Timor-Leste and Australia from pursuing alternative
methods to peacefully settle their maritime dispute.

Despite the commendable progress with the 2003 Unitisation Agreement and the
2006 CMATS Treaty, Timor-Leste and Australia failed to agree on the construction
of pipelines from the Greater Sunrise. Australia insisted the pipelines be directed to
Darwin. Whereas Timor-Leste insisted the pipelines be directed to its sovereign
territory. From an economic perspective, Australia’s position was not unfounded. It
was the more commercially viable option to construct the pipelines from the Greater
Sunrise into the Australian city and port of Darwin. Nonetheless, due to the
disagreement of where the natural resources would be directed and processed, the
full-scale development of the Greater Sunrise did not proceed.

Furthermore, the maritime boundary delimitation issue between the State Parties
remained unresolved. In 2002, Australia made a unilateral declaration in accordance
with Article 298 of UNCLOS to exclude maritime boundary delimitation disputes
from the jurisdiction of UNCLOS’ dispute settlement mechanisms.78 Australia also
closed another legal avenue for Timor-Leste to commence proceedings on this
maritime dispute. Australia amended its acceptance of the ICJ’s compulsory
jurisdiction. On 22 March 2002, Australia informed the ICJ that it did not accept the
Court’s compulsory jurisdiction, pursuant to Article 36(2) of the ICJ Statute, with
respect to maritime boundary delimitation disputes.79

Australia preferred bilateral negotiations with Timor-Leste to settle their maritime

boundary delimitation issue and conclude an agreement on the economic
development of the Greater Sunrise. Klein observes UNCLOS dispute resolution
procedures possess the ability to ‘recalibrate power differentials that exist between
states’.80 This could not be truer in the case of Timor-Leste and Australia, two distinct
coastal states by their significant difference in territory, natural resources, wealth,

75
Treaty between Australia and the Democratic Republic of Timor-Leste on Certain
Maritime Arrangements in the Timor Sea, opened for signature 12 January 2006,
2483 UNTS 359, (entered into force 27 June 2006) (‘CMATS Treaty’).
76
Ibid art 11.
77
Ibid art 4.
78
UNCLOS (n 1) art 298.
79
ICJ Statute (n 32) art 36(2).
80
Natalie Klein, ‘The South China Sea Arbitration: Toward an International Legal
Order in the Oceans written by Yoshifumi Tanaka’ (2021) 36(1) International
Journal of Marine and Coastal Law 187, 187.
geography, and population. As a result, Timor-Leste had limited legal avenues
available to settle its maritime boundary delimitation issue with Australia. Not to
mention, the two coastal states had accomplished inconsequential progress on the
economic development of the Greater Sunrise. Consequently, on 11 April 2016,
Timor-Leste commenced compulsory conciliation against Australia in accordance
with UNCLOS.81 Timor-Leste insisted that a Commission be instituted, to assist it in
the peaceful settlement of its protracted maritime dispute with Australia.

VI WHY WAS CONCILATION SUCCESSFUL IN THIS

MARITIME DISPUTE?
This section of this article considers why conciliation was an effective instrument in
the peaceful settlement of the maritime boundary delimitation dispute between
Australia and Timor-Leste. This article proposes the FFC Theory, which posits four
primary factors are responsible for the viability of conciliation. These four factors
include: (1) non-adversarial nature of conciliation, (2) composition of the
commission, (3) confidentiality of proceedings, and (4) flexibility of conciliation.

A Non-adversarial nature of conciliation

Unlike alternative methods for the peaceful settlement of international disputes

between sovereign states, such as contentious proceedings at the ICJ or the ITLOS,
conciliation proffers an informal approach to the peaceful settlement of international
disputes. In relation to maritime disputes between state parties to UNCLOS,
conciliation involves the institution of a Commission. Article 4 of Annex V in
UNCLOS, vests the Commission with agency to ‘determine its own procedure’.82 As
a result, the Commission dispenses with the formalities of legal procedure that
underwrite the rules and processes of how maritime disputes are settled at the ICJ83
or the ITLOS.84 Furthermore, Article 5 of Annex V in UNCLOS affirms the
Commission is established to facilitate an ‘amicable settlement’85 to the maritime
dispute between the concerned state parties. In effect, réglement amiable (amicable
settlement) is to settle a maritime dispute by agreement between the concerned state
parties.86 In addition, Article 6 of Annex V of UNCLOS affirms that the
Commission’s objective is to ‘hear the parties, examine their claims and objections,
and make proposals to assist the parties in achieving an amicable settlement’.87 The
Commission has considerable scope to appraise alternative solutions in the dispute
settlement process. Solutions that may not be considered by the ICJ or the ITLOS.

81
UNCLOS (n 1) art 298.
82
Ibid annex V art 4.
83
Hugh Thirlway, The Law and Procedure of the International Court of Justice:
Fifty Years of Jurisprudence (Oxford University Press, 1st ed, 2013) vol 1.
84
UNCLOS (n 1) annex VI: Statute for the International Tribunal for the Law of the
Sea.
85
Ibid annex V art 5.
86
Proelss Commentary on UNCLOS 2320 (n 8).
87
UNCLOS (n 1) annex V art 6.
Initially, Australia challenged the jurisdiction of the Commission to inquire into this
maritime dispute. Australia alleged the Commission was incompetent to proceed
with the conciliation.88 Australia’s preliminary objection had to be addressed, before
the substantive issues were examined. It is not uncommon for states to challenge the
jurisdiction of international judicial institutions. In Mauritius v Maldives,89 the
Maldives filed preliminary objections challenging the jurisdiction of the Special
Chamber constituted in accordance with the ITLOS.90 As a procedural matter of law,
the Special Chamber addressed this preliminary legal issue. The Special Chamber
determined that it possessed the requisite jurisdiction to adjudicate on this
international dispute.91

In August 2016, the Commission held a hearing to address the objection to

competence raised by Australia. On 19 September 2016, the Commission advised
the concerned state parties of its Decision on Competence.92 The Commission
affirmed it was competent in relation to the compulsory conciliation instituted by
Timor-Leste against Australia in accordance with UNCLOS. In addition, the
Commission confirmed there were ‘no issues of admissibility or comity’93 that
obstruct the Commission’s function. As a consequence, Australia was bound by the
Commission’s determination on jurisdiction, and it had to proceed with the
conciliation effort.

Conciliation is a non-binding peaceful dispute settlement mechanism. Therefore, the

Commission is unable to secure a settlement without a mutually acceptable outcome
to Timor-Leste and Australia. As a result, the Commission’s effort is directed to assist
the State Parties to conclude an agreement. In this endeavour, the Commission
promoted confidence-building measures. For example, the Commission convened a
series of meetings with the agents of Timor-Leste and Australia in the city-state of
Singapore from 10 to 13 October 2016. The Commission’s meetings with the agents
of the State Parties were held separately. In addition, oral and written submissions to
the Commission were treated as confidential in accordance with Article 18(6) of the
Rules of Procedure.94

Following the high-level meetings in Singapore, the Commission wrote to the State
Parties with a Commission Proposal on Confidence-Building Measures. Through
informal dialogue and separate consultations with the State Parties, the Commission
secured their commitment on four paramount issues. First, Timor-Leste agreed to

88
Conciliation Commission, Permanent Court of Arbitration, Report and
Recommendations of the Compulsory Conciliation between the Democratic
Republic of Timor-Leste and the Commonwealth of Australia, (Report, PCA Case
No 2016-10, 9 May 2018), (‘Commission Report’) [65].
89
Dispute Concerning Delimitation of the Maritime Boundary between Mauritius
and Maldives in the Indian Ocean (Mauritius v Maldives) (Judgement)
(International Tribunal for the Law of the Sea, Case No 28, 28 April 2023).
(‘Mauritius v Maldives’).
90
Ibid [15].
91
Ibid [22].
92
Commission Report (n 88) annex 9.
93
Ibid [111.B].
94
Commission Report (n 88) [91]; annex 8.
terminate the CMATS Treaty. Second, both state parties committed to negotiate a
permanent maritime boundary. Third, Timor-Leste agreed to discontinue arbitration
proceedings commenced pursuant to the Timor Sea Treaty. Fourth, the Commission
secured a firm political commitment from Australia to delimit an international
maritime boundary line with Timor-Leste.95 The non-adversarial nature of the
Commission permitted it to guide the State Parties away from their grievances,
mistrust, and entrenched negotiating positions. The diplomatic efforts of the
Commission secured it considerable gains. These gains positioned the Commission
for a productive working relationship with Timor-Leste and Australia over the course
of 2016 and 2017.

For Australia, the major obstacle to moving forward with the conciliation effort was
Timor-Leste’s recourse to proceedings under the CMATS Treaty. However, Timor-
Leste took a leap of faith and in accordance with Article 12(2) of the CMATS
Treaty,96 it terminated this treaty.97 The proceedings under the CMATS Treaty were a
contentious issue for Australia. The Commission correctly identified this as an
impediment that required resolution, prior to substantive progress on the maritime
boundary issue. Had the Commission been adversarial in nature, representing a legal
contest between the State Parties, it is questionable whether Timor-Leste would have
unilaterally terminated the CMATS Treaty.

B Composition of the commission

The four conciliators’ skills, qualifications, knowledge, experience, and personality

are equally important to the success of the conciliation effort. In addition, the
leadership of the Chairperson is instrumental to secure an outcome that both state
parties agree to in a conciliation. Conciliation requires understanding and
cooperation to facilitate a process that produces mutually beneficial outcomes.
Therefore, the considered appointment of the two conciliators from each state party
is an important decision in instituting the Commission. Beyond the appointment of
the four conciliators, the appointment of the Chairperson is pivotal to the
Commission’s conciliation effort. The leadership and influence of the Chairperson
performs an inordinate role in the Commission’s ability to bring the state parties to
an amicable settlement.

For Timor-Leste, the Commission was administered by Judge Abdul Koroma and
Rüdiger Wolfrum. Koroma exemplifies a distinguished career in international law
and diplomacy. From 1994 to 2012, Koroma served as a judge at the ICJ. Koroma
has been Chairperson for the UN General Assembly 6th Committee (Legal) and a
distinguished member of the International Law Commission (‘ILC’). In addition,
Koroma, as ambassador, represented Sierra Leone at the United Nations. Not to
mention, Koroma was also involved in the negotiations pertaining to UNCLOS.

95
Commission Report (n 88) [95].
96
CMATS Treaty (n 75) art 12(2).
97
Commission Report (n 88) annex 16 (‘Trilateral Joint Statement’).
Koroma is an honorary bencher at Lincoln’s Inn.98 Koroma brought an invaluable
set of skills, expertise, and legal knowledge to the Commission.

Professor Rüdiger Wolfrum is a distinguished German jurist, legal scholar, and

intellectual. From 1993 to 2012, Wolfrum was a Director at the Max Planck Institute
for Comparative Public Law and International Law. In addition, from 2005 to 2009,
Wolfrum served as President of the ITLOS.99 Professor Wolfrum has authored
several scholarly publications on international law. Some of Wolfrum’s publications
include: Conflicts in International Environmental Law (2003), Environmental
Liability in International Law (2005), and Solidarity and Community Interests
(2021).

Australia’s selection of its two conciliators was also commendable to assist the
Commission. Australia appointed Dr. Rosalie Balkin and Professor Donald McRae.
Dr. Balkin has served as the Secretary-General of Comité Maritime International. In
addition, Dr. Balkin was a Director of Legal Affairs and External Relations at the
International Maritime Organisation (‘IMO’). Dr. Balkin has served as the Assistant
Secretary in the Office of International Law at the Federal Attorney-General’s
Department in Australia. Last but not least, Dr. Balkin has held academic
appointments at the University of the Witwatersrand (South Africa) and the
University of Cambridge (the United Kingdom).100

Professor McRae is a Professor of Law at the University of Ottawa (Canada). McRae

has lectured at the University of British Columbia (Canada). McRae served as an
Advisor to the Department of External Affairs of the Government of Canada. In
addition, McRae has been involved in dispute settlement procedures in relation to
the North American Free Trade Agreement (‘NAFTA’). McRae has also served as a
panellist for international trade law disputes adjudicated by the World Trade
Organisation (‘WTO’) Panel and Appellate Body. In 2006, McRae was elected to the
ILC.101

Once the four conciliators were determined by the State Parties, they collectively
agreed on the appointment of Danish Ambassador, His Excellency Peter Taksøe-
Jensen on 25 June 2016 as the Commission’s Chairperson. On the same day, the
Commission was constituted and it came into effect. Taksøe-Jensen possesses a
distinguished record in global diplomacy and international affairs. He has served as

98
Temple Garden Chambers, ‘Judge Abdul Koroma’, Judge Abdul Koroma:
Overview, (Web Page, 4 November 2024),
<[Link]
99
Max Planck Foundation, ‘Em Prof Dr Rüdiger Wolfrum’, Em Prof Dr Rüdiger
Wolfrum Honorary Director, (Web Page, 4 November 2024),
<[Link]
100
Comité Maritime International, ‘Getting to know your EXCO: Rosalie Balkin
Newsletter 2/2023’, (Web Page, 4 November 2024),
<[Link]
2-2023/>.
101
University of Ottawa, ‘Profile Donald M. McRae: Emeritus Professor’, (Web
Page, 4 November 2024), <[Link]
law/faculty/m-mcrae-donald>.
the Danish Ambassador to Bhutan, India, Japan, the Maldives, Sri Lanka, and the
United States. In addition, Taksøe-Jensen has worked with the European Union
(‘EU’) and the United Nations. Last but not least, Taksøe-Jensen was the Chairperson
of several prominent institutions, including Trade Council South Asia and American-
Danish Business Council.102

The selection of the four conciliators and the Chairperson was instrumental in the
efficacy of the Commission. Without the requisite skills, qualifications, knowledge,
experience, and personality, the four conciliators would not have been able to create
a united working group to propose bold ideas, creative solutions, and create a
positive atmosphere of engagement with the State Parties’ agents. Not to mention,
the diplomatic skill and experience of Chairperson Taksøe-Jensen was invaluable.
As an experienced career diplomat, Taksøe-Jensen possessed decades of negotiating
experience and cultural sensitivity to methodically engage Timor-Leste and
Australia.

C Confidentiality of proceedings

Unlike contentious proceedings at the ICJ or the ITLOS, the Commission conducts
its work in a discreet manner. This approach permits the Commission to advance its
overarching purpose of securing a negotiated settlement between the state parties.
From the Commission’s commencement, it met separately with the agents of the
State Parties from 10 to 13 October 2016 in Singapore. Both State Parties were
encouraged to convey their respective positions candidly. Importantly, ‘no formal
written record was kept’103 of this or any subsequent meeting. The Commission’s
confidential approach to engagement ensured there was no concern of reprisal for
the State Parties in relation to their submissions. Accordingly, the agents of the State
Parties were not confined in their oral and written submissions to the Commission.

Following the Singapore meetings, the State Parties provided additional

documentation to the Commission on a confidential basis.104 The Chairperson and
four conciliators carefully perused the material provided to the Commission. This
permitted the Commission to engage in frank dialogue that secured considerable
progress on the maritime boundary delimitation issue. Confidentiality permitted the
Commission to secure two substantial breakthroughs. First, Timor-Leste’s decision
to terminate arbitration under the Timor Sea Treaty.105 Second, Australia’s political
commitment to establish a permanent maritime boundary with Timor-Leste.106

The Commission acknowledged its confidence-building measures led the State

Parties to ‘abandon stances which constituted an obstacle to moving forward’.107 The
confidence-building measures resulted in the issuance of a Trilateral Joint Statement

102
Ministry of Foreign Affairs of Denmark, ‘Curriculum Vitae: Peter Taksøe-Jensen’,
(Web Page, 4 November 2024), <[Link]
en/welcome/curriculum-vitae>.
103
Commission Report (n 88) [94].
104
Ibid [95].
105
Ibid [96].
106
Ibid [99].
107
Ibid [289].
by the Commission and the State Parties on 9 January 2017.108 This statement
affirmed that the State Parties agreed to an ‘integrated package of measures’109 to
settle their maritime boundary delimitation dispute. The Commission’s control of the
public relations narrative through joint statements ensured the projection of trust and
confidence between Timor-Leste and Australia to the international community.

The Commission separately provided the State Parties with an Issues Paper which
served three fundamental purposes. First, inform the State Parties of the
Commission’s perspective on the maritime issues. Second, identify maritime issues
that the Commission deemed relevant and needed to be addressed. Third, provide an
opportunity for the State Parties to clarify if there were any misunderstandings.110
Resolving misunderstandings early in the conciliation process ensured that the
Commission’s proposals were in synergy with Timor-Leste and Australia’s
negotiating position on the maritime issues. As a result, the Commission’s non-
binding recommendations in its final report were more likely than not to be accepted
by the State Parties.

D Flexibility of conciliation

The greatest advantage of UNCLOS compulsory conciliation is its ‘ability to

calibrate proceedings to address the elements necessary’111 to settle maritime
disputes. The Commission was well-placed to secure a satisfactory outcome for
Timor-Leste and Australia. Unlike the ICJ or the ITLOS, the Commission possessed
the capacity to examine unique options to the peaceful settlement of this maritime
dispute. In addition, the Commission exercised its own initiative to propose novel
solutions to this protracted maritime dispute. In accordance with Article 74(1) of
UNCLOS, the Commission assisted Timor-Leste and Australia to reach an ‘equitable
solution’112 that was acceptable to both state parties.

In the 1969 North Sea Continental Shelf Cases,113 the ICJ construed equitable
principles and the Court affirmed that ‘equity does not imply equality’.114 The
equidistant method is one method to delimit the maritime boundary between coastal
states. Nonetheless, it may not constitute the most equitable solution based on the
unique geography of the concerned coastal states. In North Sea Continental Shelf
Cases, the ICJ reasoned, ‘it is necessary to seek not one method of delimitation, but
one goal’.115 In the case of conciliation, that ‘one goal’ of maritime boundary
delimitation can be determined by diplomatic means, rather than through established
legal rules and principles, so long as the proposed settlement is acceptable to the
concerned coastal states.

108
Trilateral Joint Statement (n 97).
109
Ibid.
110
Commission Report (n 88) [117].
111
Ibid [292].
112
UNCLOS (n 1) art 74(1).
113
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark)
(Judgement) [1969] ICJ Rep 3 (‘North Sea Continental Shelf Cases’).
114
Ibid [91].
115
Ibid [92].
During the Commission’s preliminary discussions with the State Parties, it
acknowledged that they had ‘clearly elaborated their positions’.116 In the
Commission’s opinion, further engagement on the well-defined national position of
the State Parties was futile to secure substantial progress. Therefore, the Commission
seized the initiative to furnish the State Parties with a Joint Issues Paper as a
reference document, rather than as a living document inviting further discussion.
Setting aside the national position of the State Parties, the Commission pivoted the
dialogue to a forward-looking agenda. On 9 March 2017, the Commission issued the
State Parties with an Annotated Agenda.117 The Commission’s agenda recalibrated
the maritime issues in this international dispute. The Commission divided the agenda
into paramount issues that required examination in separate consultations with the
State Parties, and inconsequential issues it determined to set-aside. This flexibility
in prioritising the real maritime issues in the agenda, provisioned the Commission
with control over the dialogue between the State Parties. By deferring the
examination of impediments, where progress was unlikely or not of great
significance, the Commission ensured that it had given the conciliation process the
greatest prospects of success.

In addition to convening separate meetings with the State Parties, there were
informal consultations between the political leadership of both state parties. The
Commission’s Chairperson, Taksøe-Jensen was unwavering in his endeavour to
engage the political leaders of Timor-Leste and Australia. In April and May 2017,
Taksøe-Jensen met with the respective leaders of both state parties in Canberra,
Singapore, and Sydney.118 Chairperson Taksøe-Jensen followed through with several
telephone conversations. Between 20 and 22 May 2017, Taksøe-Jensen engaged in
shuttle diplomacy. Taksøe-Jensen convened high-profile meetings across the Asia-
Pacific region with Australia’s Foreign Minister Bishop, Australia’s Attorney-
General Brandis, and the agents of the State Parties.119

This flexibility in the Commission’s approach to conciliation between Timor-Leste

and Australia, secured it substantial gains. By June 2017, the Commission had
successfully narrowed the differences of the State Parties to four paramount issues.
These four issues were acknowledged in the Commission’s Inter-Session Guidance
distributed to the State Parties.120 The Commission’s calibrated approach in
addressing these maritime issues, in connection with the leadership and tenacity of
Chairperson Taksøe-Jensen, meant that it was able to present a draft treaty text to the
State Parties on 25 September 2017.121

This conciliation effort proved a productive endeavour, although the process

continued longer than the envisaged time frame of twelve months. Article 7(1) in
Annex V of UNCLOS affirms that the Commission shall report on the conciliation

116
Commission Report (n 88) [119].
117
Ibid [121].
118
Ibid [127].
119
Ibid [130-132].
120
Ibid [137].
121
Ibid [175].
within twelve months.122 However, the Commission demonstrated flexibility on the
time frame in relation to this conciliation effort. The Commission secured the
consent of the State Parties to extend this conciliation process.123 This invaluable
extension provided the State Parties with additional time to finalise a bilateral
agreement and execute a treaty. On 13 October 2017, agents for Timor-Leste and
Australia affirmed their initials to a final draft treaty concerning their maritime
boundary delimitation.124

VII CONCLUDING OBSERVATIONS

There were several factors that made this Commission’s conciliation endeavour
successful. As the FFC Theory has demonstrated, what makes conciliation a viable
dispute settlement mechanism is encapsulated in four factors: (1) non-adversarial
nature of conciliation, (2) composition of the commission, (3) confidentiality of
proceedings, and (4) flexibility of conciliation. These four factors are the primary
determinants that explain the viability of conciliation in the maritime boundary
delimitation dispute between Timor-Leste and Australia. Conciliation under
UNCLOS has its real limitations, most notably, the non-binding nature of the
Commission’s recommendations in its final report. Nonetheless, conciliation is a
unique mechanism for the peaceful settlement of maritime disputes between
sovereign states. The viability of conciliation to peacefully settle international
disputes resides within the people, procedures, and processes, not within its rules,
reports, and recommendations. Conciliation ensures that maritime disputes between
sovereign states are settled with confidentiality and diplomacy, that the ICJ or the
ITLOS cannot provide.

122
UNCLOS (n 1) annex V art 7(1).
123
Commission Report (n 88) [4].
124
Ibid [183].