The Challenge and Prospect for Maritime Delimitation: Conflict of Overlapping Areas in the Malay Peninsula Region

Introduction

Nowadays, the ocean is significantly essential to human life. The depletion of marine food resources and the energy security nexus management in overlapping areas are issues that urgently need to be tackled and resolved. Especially among developing countries like our ASEAN Community, securing the capability of ocean exploitation is a new trend that must be undertaken by each state over sea areas, which at times leads to “Maritime Delimitation Conflict.” The list of cases shows that cases concerning maritime delimitation are still active and relevant; these problems require human resources to solve them. Thus, the current issues related to the law of the sea that I have chosen to express through this article concern the Law of Maritime Delimitation, which could be demonstrated and developed into the Law and Policy of ASEAN relations.

“The Challenge” of this issue is, firstly, that the Rules of Law are being questioned for their effective enforcement on dispute settlement between “Neighboring States.” Besides, this is a challenge within time limits since marine natural resources, both living and non-living resources in this overlapping area—fish, oil, and gas—are gradually decreasing and disappearing. Secondly, this delimitation management between Thailand and Cambodia has become a very urgent concern for the ASEAN region, seeing that in our Southeast Asian Sea area, there are plenty of overlapping sea areas over the Continental Shelf and Exclusive Economic Zone. These circumstances exist in many neighboring states that have not been settled yet. If one maritime overlapping area problem cannot be solved, there will be a huge consecutive effect on other maritime overlapping areas in the region.

“The prospect” of solving this issue should be addressed accordingly: other means besides judicial and legal means must be applied to effectively contribute to resolutions. As we all acknowledge, “Overlapping Claim Areas” exist all over the world’s sea areas; however, the conditions that compose each maritime delimitation conflict are not the same, so the hardest part is analyzing the root cause of the problem in each maritime delimitation situation.

Historical Background

Since its establishment in 1967, the Association of Southeast Asian Nations (ASEAN) has been a cornerstone of Southeast Asian countries’ foreign policy, and the organization was crucial in securing peace and security during the Cold War. Moreover, before the establishment of ASEAN, there was much more conflict between Southeast Asian countries, making the region fragile, and its establishment has led to a more prosperous and peaceful region. However, situations that arouse disagreement among ASEAN member nations have gradually accumulated over our ocean, which has also led to complicated ocean governance. It is important to note here that there are two broad categories of ASEAN member states: maritime-based ASEAN countries, which are mostly claimants to disputes, and land-based ASEAN countries, which are not directly involved in disputes.

There are two dimensions of urgency: multilateral platforms like Thailand vs. Malaysia, which have already reached agreements, and bilateral platforms that exist tremendously in the ASEAN region, for instance, Thailand vs. Cambodia, Vietnam vs. Cambodia, Vietnam vs. Malaysia, and Thailand vs. Vietnam, which are very interesting to study. These situations show that there are sea areas where more than two parties overlap each other. If there is at least one case that can be solved successfully by means of United Nations Convention on the Law of the Sea dispute settlement, there is hope for other overlapping areas in our region. Furthermore, the dispute settlement measures in this case could be expanded to apply to other similar cases around the world. The reason I choose to focus on the case between Thailand and Cambodia is not only because of the geopolitical factor near the Gulf of Thailand, where many overlapping areas are located, but also because between our two countries there are many complicated factors that affect dispute settlement means, which is the real challenge from my point of view as a Law of the Sea academic.

Even though both states care for regional stability and sustainable development over this overlapping claim area, specifically on the “Optimum Utilization Principle” of marine non-living natural resources like oil and gas, the two states definitely express maximum claims for their own equidistance lines. Even if there are people and organizations who share this sense of crisis for the future of our ocean, they are not able to work together and effectively compromise to reach full potential. Between Thailand and Cambodia, there is a lack of good understanding among the two states, which challenges the effectiveness of the rule of law on dispute settlement the most. This issue has actually been ongoing for more than 70 years yet has not been settled with satisfaction between these two states. Recently, we have addressed this issue under the agreement in the Memorandum of Understanding of 2001 between Thailand and Cambodia, but still cannot finalize and settle this dispute.

The Legal Challenge

The first legal challenge, as my experience has shown, is that the mechanism for the settlement of disputes related to maritime claims is basically under Part XV of UNCLOS. The issue is how to settle and manage the overlapping sea area of both the upper latitude 11 and lower latitude 11 parts that each state has drawn. The agreements stated in the 2001 Memorandum of Understanding at this point, when considered together with the reality of the political atmosphere of our countries, may not be achievable by “Peaceful Means” of dispute settlement. There are many times when regional politics impact the rules of law for dispute settlement measures, noting that every cooperation needs “Good Understanding,” which recently our two states don’t have for each other.

The core of this first argument is that the existing rules of law and how to enforce them are not moving in the same direction. Even though there are illustrations of advisories and judgments from UNCLOS and other dispute settlement organs, the state parties still cannot compromise their claims peacefully. The critical challenge is whether or not the judgments related to maritime delimitation issues can be applied successfully to either the “Negotiation” or “the Joint Development Area Agreement” of two problematic states. There is undeniably a duty to find out what the “Complicated Factors” are that block our countries from reaching the goal of settling this dispute from the angle of a legal approach toward the rules of law.

“Where there is no good understanding, there are no effective measures to settle the dispute that comes from the maximum claims of each side.” The challenges that are of most concern and eagerness to learn about are the social, political, legal, and environmental factors that are invisibly bound together. According to UN Charter Article 33, to reach the ultimate goal of dispute settlement between Thailand and Cambodia, both diplomatic means and judicial means have to be applied. Choosing among “Compulsory Judicial Organ” or “Alternative Approach,” “Negotiation” or “Conciliation,” which result differently for the parties in this case—each of these measures is not that simple to settle when it comes to dealing with how to draw “Base Lines” justifiably.

The situation that occurred recently is a real case based on the true story of the jurisdiction issue of Annex 7. The prospect of this case is: which dispute settlement method is the best way to solve this conflict? Is setting up a Joint Development Area under the impact of political aspects the appropriate way? How would ITLOS enhance the compromise clause that has legal binding between two states? Or what would be the outcome if the parties choose to use conciliation measures of fact-finding with no legal binding? Would that be accepted by the citizens of two states without any criticism from society? On this basis, the agreements under the MOU 2001 are still active, but are they suitable for this case? “How to deal with the Law of the Sea and Politics?”

The second legal challenge is to clarify the dispute and see if the JDA is actually effective or not given the current political atmosphere between neighboring states. The hypothesis toward the dispute over drawing the baseline as the instrument to measure maritime delimitation can be concluded: sometimes JDA does not work. The prospect that is foreseen is supposed to come from “Both Sides’ View”; a “Rule Base” might not be enough to handle this situation. There is the rationale of conflict of baseline related to Article 33, to find the perfect model of how to adjust “the Equidistance Line” under “Special Circumstances,” which is very complicated.

In addition, what are the weak points and strong points of each state? Each factor is supported by which articles in UNCLOS? For instance, both Thailand and Cambodia accept the concept of how to settle disputes over EEZ or Continental Shelf in the Geneva Convention 1958; on the other hand, Cambodia is not a member of UNCLOS 1982, though it accepts some parts of the regulations related to dispute settlement. In the near future, if Thailand and Cambodia decide to raise the case to the Tribunal, “How would the International Tribunal for the Law of the Sea contribute to the judgment?” How to appoint the Base Line under the dispute that concerns the criteria of both Legal Dispute and Political Dispute is complicated. Furthermore, how would the Tribunal clarify the dispute in this case? Could it be Contestation in English or only Différend in French? All these descriptions drive curiosity about the prospect of this dispute, which I encourage stakeholders to return to this forum again to get the opportunity to significantly contribute to social innovation over the ocean of two neighboring states.

The merit of focusing on this issue, both fact-finding and matters of International Law of the Sea, is “Proportionality.” Furthermore, the benefit to the ASEAN region is that without a good solution to this issue, it is impossible to secure maritime affairs. Ocean governance, policy, and related law will keep changing as long as there are still new changes and circumstances happening over sea areas. We still have to continuously learn and follow what will be modified in the near future to make the Law of the Sea compatible with “The Blue Economy” concept from the World Bank. Unfortunately, even though Thailand is one of the developing countries that possesses a wide range of sea areas and fully exploits the optimum utilities of our sea, we still have no domestic Law of the Sea or Public Maritime Law like other neighbors in ASEAN. These two critical regulations are not quite active in Thailand in the context of interpretation and application, especially matters of law from Articles 73, 74, 84, 288, and Article 297 (Accept as Package Deal) of UNCLOS, followed by advisories and judgments from ITLOS and Arbitration in Annexes 7 and 8, which are very complicated and broad.

Nowadays, the global trend has changed because of the impact of international politics, resulting in humankind turning to explore and exploit natural resources significantly from the ocean. As a result, there is much more to study beyond the academic aspect, including Law of the Sea matters. At present, many states around the world still practice maximum claims for rights over overlapping areas, and that leads to many disputes between states. How to deal with the sharing of oil and gas, which are non-living natural resources, and the management of delimitation, and to consider if JDA is the better option or not, is not easy even for the Tribunal or other dispute settlement organs. For this issue, even though UNCLOS exists as a rule base, it could be considered as having broad interpretation, which impacts many states and is left as an open question to study.

Conclusion

To reach the goal of our community, creating our future of the ocean is an unavoidable duty for every member of the region. One path to achieving social innovation in ocean governance is to successfully settle maritime delimitation conflicts, which would be accomplished by constantly thinking about “building up an inventory of ideas for peaceful means.” Then the most necessary mechanism is implementing and exercising effective but friendly legal regulations that both parties are able to apply. As a means to create new frameworks for a better society and bring about change, this will result in major changes for society as a whole. However, new social frameworks and changes that will move all of society cannot be created overnight like building one ship, so good understanding from historical times has to be considered.

Recommendation

I acknowledge that one of ITLOS’s main aims is to promote peaceful means of dispute settlement, particularly for nationals of developing countries. With this in mind, I would like to fully establish a new dimension apart from judicial means and add diplomatic means to address this type of dispute. At least if alternative means could be applied to the “Overlapping Claim Area” issue, then each state can cherish excellence in marine natural resource exploitation freely. Economics and natural sciences advance daily; each country should be able to navigate their seas without worrying about boundary barriers. That would enable the ocean of Southeast Asia to be better placed to more fully capture the economic benefits from the development of fields in overlapping claims areas.