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Article Excerpt
The Gulf of Thailand is a semi-enclosed arm of the South China Sea bounded by Cambodia, Malaysia, Thailand and Vietnam. In additional to 12 nautical mile (nm) breadth territorial seas, all the Gulf of Thailand littoral states have made claims to extended zones of maritime jurisdiction, that is, to continental shelf and exclusive economic zone (EEZ) rights, in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) (United Nations 1983). (1)
The Gulf's limited size means that no coastal state can claim a full 200 nm EEZ entitlement. This has led to extensive overlaps between competing claims to maritime jurisdiction. These conflicting claims have been exacerbated by complex coastal geography, particularly the presence of numerous islands, islets and rocks, some of which have been subject to sovereignty disputes. Moreover, excessive claims to straight baselines, claims based on dubious treaty interpretations, and differing, self-serving, applications of equidistance as a method of constructing unilateral claim lines have complicated the jurisdictional picture. Consequently, multiple overlapping claims to the same maritime space have been advanced--a case of overlaps of overlaps (see Figure 1).
[FIGURE 1 OMITTED]
The delimitation of maritime boundaries in the Gulf of Thailand has therefore proved particularly problematic. Indeed, the only maritime boundaries to be delimited to date have been a territorial sea border and relatively short, partial, section of continental shelf boundary between Malaysia and Thailand concluded in 1979 (Charney and Alexander 1993, pp. 1096-98 and 1105-07) and a delimitation concerning continental shelf and EEZ rights in the central Gulf reached between Thailand and Vietnam in 1997 (Charney and Smith 2002, pp. 2683-94). (2) In this context it is also worth noting that the overarching political context has often militated against negotiations towards maritime boundary delimitation. For instance, prior to the end of the Cold War such discussions, or indeed any negotiations, between broadly Western-oriented Malaysia and Thailand and communist Cambodia and Vietnam were off the agenda.
With regard to maritime boundaries, the presence, or perceived presence, of seabed hydrocarbon resources has further complicated the picture. The Gulf of Thailand is an established oil and, particularly, gas province and large areas of prospective seabed fall within zones of overlapping maritime claims. The possible presence of resources and the desire to gain access to them can play a dual role in maritime boundary delimitation. On the positive side, this can encourage states to reach swift agreement so that exploration and exploitation can commence with minimum delay. Conversely, such considerations can encourage coastal states to make, and stubbornly cling to, maximalist claims unlikely to be acceptable to their neighbours. Furthermore, the hydrocarbon resource potential of an overlapping claims area, coupled with the lack of certainty over the precise location of resources, may also inhibit either side from defining a single compromise line for fear of subsequently discovering that the resources in question fall on the "wrong" side of the line. Rather than delimiting maritime boundaries, therefore, the Gulf of Thailand coastal states have instead repeatedly opted to enter into joint arrangements in order to manage their substantial areas of overlapping claims and, crucially, to facilitate access to the seabed hydrocarbon resources of the Gulf.
This article will provide a brief overview of the legal and geographical factors relevant to maritime boundary delimitation as a prelude to an examination of this remarkable concentration of state practice on maritime joint development. The considerable contrasts between the joint arrangements in question will be explored. The potential for the application of further maritime joint development zones to extant zones of overlapping claims will then be examined.
Maritime Boundary Delimitation and Joint Development
Where overlapping claims to territorial seas require delimitation, Article 15 of the United Nations Convention on Law of the Sea (UNCLOS) applies. This article calls for the application of a median line, failing agreement to the contrary or the existence of a "historic title or other special circumstances" in the area to be delimited. In the absence of agreement on a different line or the presence of these factors, therefore, the equidistance method for constructing a delimitation line is favoured. However, no preferred method of delimitation is indicated with regard to the extensive resource-oriented zones of sovereign rights, the continental shelf and EEZ. Articles 74(1) and 83(1) of UNCLOS, dealing with the delimitation of the EEZ and continental shelf respectively, simply call, in identical terms, for delimitation to be effected through agreement on the basis of international law "in order to achieve an equitable solution". On the one hand this affords coastal states greater flexibility in their task of achieving maritime boundary delimitation agreements with their maritime neighbours. On the other, this lack of guidance as to a preferred method of delimitation gives rise to great potential for uncertainty, conflicting interpretations and thus maritime boundary disputes. Although no particular method of delimitation is recommended, it is clear that in practice the equidistance method has proved far and away the most popular method of delimitation, for example providing the basis for 89 per cent of delimited maritime boundaries between opposite coasts (Prescott and Schofield 2005, p. 238).
Where deadlock in maritime boundary delimitation negotiations does occur, UNCLOS provides clear encouragement for coastal states to reach interim, cooperative, arrangements. Articles 74(3) and 83(3) relating to delimitation of the EEZ and continental shelf both state that:
Pending agreement ... the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardise or hamper the reaching of a final agreement. Such agreements shall be without prejudice to the final delimitation.
This provides the international legal rationale for the creation of maritime joint development zones. In the Gulf of Thailand context it is also important to acknowledge that Article 123 of UNCLOS contains a clear obligation for states bordering enclosed and semi-enclosed seas to co-operate. (3) It is against this backdrop that the Gulf of Thailand littoral states have entered into three such "provisional arrangements of a practical nature"--between Malaysia and Thailand, Cambodia and Vietnam, and Malaysia and Vietnam (see also Ong 1999, pp. 210-22).
The Malaysia--Thailand Joint Development Area
As noted, Malaysia and Thailand reached agreement on a territorial sea boundary and part of their potential continental shelf boundary in the Gulf of Thailand in 1979. Beyond a point around 29nm offshore, however, delimitation negotiations between Malaysia and Thailand reached a stalemate. The key reason for this deadlock was a dispute concerning the status of an offshore insular feature, Ko Losin, and its potential impact on claims to maritime jurisdiction.
Ko Losin is located approximately 39nm offshore and is a steep-to rock approximately 1.5 m (5 ft) above high-water with a light-beacon sited on it (Charney and Alexander 1993, p. 1100). Although Thailand did not itself give Ko Losin full effect in the construction of its unilateral 1973 continental shelf claim, in the context of delimitation negotiations with Malaysia in the 1970s Thailand appears to have insisted on Ko Losin being treated as a fully-fledged island in accordance with UNCLOS Article 121(2). This provides that islands, in an identical fashion to mainland coasts, are capable of generating a full suite of maritime zones. (4) This being the case, Thailand argued that Ko Losin be accorded full-effect in the construction of a potential delimitation line. In contrast, Malaysia appears to have insisted that this small and isolated feature is no more than a "rock" within the meaning of Article 121(3) of UNCLOS which states that "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf". Uncertainties over how a "rock" is to be distinguished from an island proper contributed to deadlock on this issue and resulted in a substantial overlap in the...
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