Timorese communal right over the Timor Gap

By Yemris Fointuna

KUPANG, East Nusa Tenggara (JP): In the days of yore, the island of Timor was famous far and wide for its agricultural produce, particularly the yellow sandalwood. The Timorese would usually take care of this produce communally.

The arrival of the Dutch and Portuguese colonial rulers divided the island into the eastern part (under the Portuguese) and the western part (under the Dutch). As the island was halved, the communal kinship between the East Timorese and the West Timorese changed, especially because the Portuguese and the Dutch coercively enforced their own regulations in their respective colonies and introduced values alien to the indigenous Timorese.

The Timorese communal kinship was well established again when East Timor integrated with Indonesia. Unfortunately, this communal kinship went sour following foreign intervention finally resulting in the holding of a self-determination referendum for the East Timorese in 1999.

The kinship between people from the two parts of the island of Timor has again been fraught with tension, conflicts, hatred and animosity. The experience of divided countries such as East and West Germany and Mainland China and Taiwan shows, however, that cultural similarity and blood relationship will never separate people although their countries may be separated by ideological or political lines. East and West Timor, likewise, are inseparable in terms of communal kinship.

The Timorese communal kinship has recently undergone another blow following the signing of a Memorandum of Understanding (MoU) on Timor Gap exploitation by Australia and East Timor, to the exclusion of Indonesia's West Timor, the nearest neighbor with kinship with East Timor. Although the signing of this MoU may be politically right, the political elite must reconsider restoring the kinship between the peoples of the two parts of Timor, including the communal right over their natural resources and cultural wealth.

This right must be honored by any parties as it is inherent in the Timorese community. It has been part of the Timorese people from the time before the colonial rulers came to this island.

This right has not been given to the Timorese by anybody and nobody but the Timorese themselves can relinquish it.

As a result of the self-determination referendum, the majority of Timorese have decided to secede from Indonesia. One of the implications of this decision is that they have ignored togetherness, brotherhood and the communal right, the three aspects of life which have deeply rooted in the history of the Timorese. In the context of the Timor Gap, the signing of a treaty with Australia shows that the East Timor elite prefer to commit self-abnegations in order to obtain internal and external legitimacy and consequently keep Indonesia out of any involvement in matters pertaining to the Timor Gap. It is obvious that the East Timorese political elite have prioritized self-preservation and self-extension. In this light, their decision to secede from Indonesia is very unwise.

To be able to understand the complexity of the Timor Gap problem, the main yardstick to use is the 1969 Vienna Convention on the law on treaties. The right question to ask in this respect is whether or not Indonesia has the courage to use the 1969 Vienna Convention and the Law on Exclusive Economic Zone pursuant to the 1982 the Law of the Sea as a reference to solve this Timor Gap problem. The recently signed MoU between Australia and East Timor ignores Indonesia's position in this matter, while in the previous MoU, signed by Indonesia and Australia, there was no special clause on the mechanism of the transfer of the right to a third party, in this case East Timor.

According to a number of references, the establishment of an MoU on the Timor Gap was prompted by the desire of both Indonesia and Australia to exploit a particular sea territory as a result of the fact that back in 1972 East Timor was still legally a colony of Portugal. Indonesia and Australia had to agree on how to exploit a vast extent of waters running south of the East Timor land. As the clauses in the MoU were then yet to be formalized as definitive clauses in a treaty, Australia's recognition of the Timor Gap as being part of East Timor is legally invalid. On top of this, there is yet to be a clear boundary separating the waters belonging respectively to the future state of East Timor, the West Timor of Indonesia and Australia. In such a situation, the establishment of a right over the Timor Gap must, indeed ironically, be based on the 1982 Convention on the Law of the Sea.

The writer is The Jakarta Post's correspondent based in Kupang.