Timorese communal right over the Timor Gap

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.