Australian lawyers honoured over historic Timor-Leste Maritime Boundary Treaty

It was the first time the compulsory conciliation process under UNCLOS had been employed and marked a historic partnership between Timorese and Australian lawyers and negotiators. Current Prime Minister Xanana Gusmao was the Chief Negotiation for Timor-Leste, and DLA Piper partner Stephen Webb was joined by Gitanjali Bajaj and Janet Legrand OBE KC along with an impressive counsel team from DLA Piper in negotiations.

That historic agreement was not a once-off for DLA Piper, which has done extensive pro bono work with Timor-Leste, along with Solomon Islands and Tonga, to secure protections for the land and sea. In 2024, the firm advised the Democratic Republic of Timor-Leste in obtaining a landmark climate ruling from the International Tribunal for the Law of the Sea (ITLOS).

The tribunal found that governments have a stringent duty of due diligence and responsibility to regulate activities emitting greenhouse gases.

The Maritime Boundary Treaty 2018

The 2018 Maritime Boundary Treaty between Timor-Leste and Australia is a point of pride for both nations, and an exemplar of peaceful and committed negotiations over shared interests. The Treaty was settled through the first-ever compulsory conciliation process under the United Nations Convention on the Law of the Sea (UNCLOS).

Australia and Timor-Leste (“the Parties”) managed to overcome an extensive, contentious history to close the ‘Timor Gap’ and reach an agreement on permanent maritime boundaries. One of the most complicated concerns was the ownership over Greater Sunrise, which was ultimately addressed by drawing provisional boundaries that will adjust after the field is fully depleted. The Greater Sunrise gas field is a major untapped natural gas and condensate resource located in the Timor Sea, approximately 450km northwest of Darwin and 150km south of Timor-Leste. The Treaty established a special regime over Greater Sunrise, to allow for joint management and development of the field and distribution of the large majority of the revenues to Timor-Leste.

On 9 May, President and Nobel Peace Laureate, J. Ramos-Horta bestowed the Order of Timor-Leste upon 15 foreign nationals who “made exceptional contributions to the establishment of Timor-Leste’s maritime borders with Australia in the Timor Sea”. The Official Ceremony was held at the Nobre Palace.

In a formal decree, President Ramos-Horta recognised the service of legal experts, diplomats, and technical professionals who supported Timor-Leste during the United Nations Mandatory Conciliation process initiated in April 2016.

Amongst those honoured were two Australian members Mr. Stephen Webb, Head of Energy Asia-Pacific, DLA Piper, and Ms. Gitanjali Bajaj, co-head of International Arbitration, DLA Piper, along with their UK former senior partner, Ms. Janet Legrand.

President Ramos-Horta said, “The establishment of our permanent maritime boundaries represents a crucial milestone in our nation’s sovereignty. These individuals demonstrated unwavering commitment to international law and justice, helping our young nation secure its rightful maritime territory and resources.”

The Treaty entered into force in August 2019, part of Timor-Leste’s journey since restoring independence on 20 May 2002.

Webb tells LSJ Online, “In 2009, DLA Piper was the largest firm globally and giving back through pro bono commitments was, and still is, a really important component of the firm, part of our DNA.  I therefore put forward a proposal to the firm that we start by sending two lawyers on a pro bono basis to assist the Government in a range of matters, mostly of a commercial and financial nature.  This included providing capacity building to various Ministries and we seconded more than a dozen lawyers on a continuous basis to live in Dili over the seven-year period prior to 2013.”

He further explains, “In 2013, Timor-Leste was around 10 years into what had become an acrimonious dispute with Australia, amidst allegations of spying by Australia during previous treaty negotiations, which had led to a 50-year moratorium on delimitation of the maritime boundary between the two countries and joint access rights for Australia to Timor-Leste’s natural resources.

“I had been talking to colleagues in London for around 12 months, trying to understand the legal and wider issues and come up with a plan, something that we could take to the Government as an alternative to consider.  Which is what we did, and DLA Piper was engaged on a commercial basis as formal legal advisors to the Government on the maritime boundary dispute with Australia.  It was the first time we had done any work other than pro bono for the Government.”

An integrated approach

Webb led the matter from Brisbane; Bajaj from the Sydney office, coming in as a disputes expert with a public international law background; and Legrand OBE KC, DLA Piper’s international Senior Partner in the London office with an exemplary track record in complex public international law disputes.  Webb says, “We worked together with a team of the most eminent experts in this field, the late Sir Elihu Lauterpacht was involved in some aspects early on and we worked more closely with Sir Michael Wood KC, Professor Vaughan Lowe KC, and junior counsel, Eran Sthoeger Esq.  We also had a small team in Washington DC, support from resource (oil & gas) specialists, and continuous lawyers on secondment on the ground in Dili.”

It was agreed upfront that DLA Piper and the Government would engage in an integrated approach.

Webb says, “Throughout the matter we worked closely with key Ministers, including and in particular, the Chief Negotiator for the maritime boundary dispute, now Prime Minister His Excellency Xanana Gusmão, the Agent, His Excellency Agio Periera (Minister of State and of the Presidency of the Council of Ministers), and the Land and Maritime Boundary Office (led by Timorese CEO Elizabeth Exposto, Senior Advisers Simon Fenby, Catarina Antunes, and Adelsia Coelho), with lawyers from the DLA Piper team being seconded to the Land and Maritime Boundary Office on a continuous basis for the duration of the matter.”

A lengthy, acrimonious relationship between Australia and Timor-Leste required a new approach.

UNCLOS process proves effective

Bajaj say, “In 2016, our team advised the Government on the never-before-used Compulsory Conciliation process under UNCLOS.  Our task was to provide the Government with a bold and innovative strategy in circumstances where all traditional means of resolution had failed to produce any result.  The unique process of Conciliation was one of the four pillars in the integrated and holistic strategy we presented to the Government, it was the ‘legal’ pillar.  As the process had never been initiated before, Timor-Leste had no precedent or guide to look to and the success of the conciliation was by no means a given … On 11 April 2016, Timor-Leste became the first State to initiate Compulsory Conciliation under UNCLOS to resolve its maritime boundary dispute with Australia.”

Compulsory conciliation as provided for under UNCLOS was designed for the very situation that Timor-Leste found itself in, Bajaj explains: “where a neighbour has withdrawn from the compulsory dispute settlement procedures in UNCLOS and refuses to negotiate.  It is a mechanism of last resort.  The process is compulsory in the sense that participation is mandatory.  The idea is to motivate the parties to come closer to reaching a settlement, with the oversight of a distinguished, impartial panel of five experts under the auspices of the United Nations (UN) providing a non-binding report, within a fixed timeline of 12 months.”

The Commission is not a court; therefore, it has a wide mandate to consider a broader range of legal and non-legal factors to facilitate a resolution.

Bajaj say, “After 14 hearings in six countries over 18 months, Timor-Leste and Australia together resolved a complex and entrenched long-standing dispute in just 24 months.  The first half of that time period was dedicated to the maritime boundary, which was a huge success, most of the second half to the Greater Sunrise project to see if a solution could be agreed between the countries and the joint venture developing the resource.  The historic Maritime Boundary Treaty was signed on 6 March 2018 in New York, at the UN Headquarters, in the presence of the UN Secretary-General.”

Personal and professional impact

Bajaj tells LSJ Online, “It is not often in one’s career, especially a corporate legal career, that we act on a matter that truly makes a difference to a country and its people.”

Webb adds, “This word is perhaps misused often, but here there is no other way of genuinely expressing how truly humbling it is to be part of a nation’s journey towards complete sovereignty, and to then be awarded this honour.”