Ominous Political Storm Gathers over Thai-Cambodian Dispute in Gulf of Thailand

INTRODUCTION

The Paetongtarn Administration has stirred up a hornet’s nest with its insistence on using the controversial “MOU-44” as the basis for an imminent resumption of talks with Phnom Penh on conflicting claims to maritime rights in the Gulf of Thailand.

The “MOU-44” was signed in June 2001, four months after Thaksin Shinawatra ascended to the premiership. This document laid down a framework for bilateral negotiations to “enter into provisional arrangements of a practical nature” in the area near Koh Kood, a popular Thai resort island, where Thailand and Cambodia have claims to the territorial sea, continental shelf, and exclusive economic zone; and in another area further south as shown in the map attached to the “MOU-44” where the two countries have agreed to explore joint development of hydrocarbon resources.

In his dinner talk on “Vision for Thailand” on 22 August 2024, one of Thaksin’s proposals was to speed up the settlement of the conflicting claims in the Gulf of Thailand, so that Thailand and Cambodia could proceed to share petroleum resources. He noted that this should be done as soon as possible, because the world has been moving away from fossil fuel to cleaner energy; the petroleum resources underneath the area claimed by the two countries would gradually lose their value if not exploited and used sooner.

Opposition parties and legal experts have urged the Paetongtarn Administration to discard the “MOU-44” because it has disadvantaged Thailand in how it had exerted its rightful maritime claims. They are concerned that continuing to use the “MOU-44” could be misconstrued as Thailand’s “tacit acceptance” of Cambodia’s claim over half of Koh Kood. Opponents of the Shinawatra family have threatened the revival of massive street protests to oust Prime Minister Paetongtarn Shinawatra for allegedly colluding with her father Thaksin, in “selling Thai sovereignty” to Cambodia in exchange for kickbacks from oil companies.

Opponents of the Shinawatra family have threatened the revival of massive street protests to oust Prime Minister Paetongtarn Shinawatra for allegedly colluding with her father Thaksin, in “selling Thai sovereignty” to Cambodia in exchange for kickbacks from oil companies.

Tensions have been rising as the Paetongtarn Administration appears to follow Thaksin’s advice to ignore all the naysayers. The situation will likely worsen if and when Thai representatives to a Joint Technical Committee (JTC) are appointed to resume negotiations with their Cambodian counterparts.

In this case, Thaksin’s influence over his 36-year-old daughter is exposing him to additional accusations of political interference, and putting Paetongtarn at risk of dereliction of duty, which could lead to her dismissal.

SUBJECT OF CONTROVERSY

As the colonial ruler of Indochina (Cambodia, Laos, and Vietnam), France signed the Franco-Siamese Treaty of 1907 with the Siamese Kingdom in Bangkok on 23 March 1907. The agreement included: Siam ceding its Burapa (eastern) provinces of Battambang, Siem Reap, and Sisophon to France. In exchange, France returned to Thailand Dan Sai district in Loei, in the upper northeast near the Lao border, as well as Trat and islands in the Gulf of Thailand near Laem Singh peninsula – including Koh Kood. However, the agreement did not include a maritime boundary between Siam and Cambodia.

As far as Thailand (the new name of Siam since 1939) is concerned, Koh Kood came under Thailand’s sovereignty as a result of the 1907 agreement. However, Cambodia appears to dispute this Thai assumption.

On an official Cambodian map in 1972, Phnom Penh appeared to claim half of Koh Kood. The following year, Bangkok countered with its official map showing Koh Kood to be under Thailand’s sovereignty.

Thailand signed the UN Convention on the Law of the Sea (UNCLOS) on 10 December 1982, and ratified it on 15 May 2011. Cambodia signed it on 1 July 1983, but has not ratified the Convention. UNCLOS entered into force on 16 November 1994.

However, when senior officials from Thailand and Cambodia met in 2000 and 2001 to discuss what ended up as the “MOU-44”, they did not focus on implications arising from UNCLOS. The two sides then seemed more interested in joint exploration of petroleum resources in the Gulf of Thailand, apparently inspired by the earlier success of Thailand and Malaysia in their MOU of 1979 to carry out joint exploration of petroleum resources in the lower Gulf of Thailand.

The ownership of Koh Kood was not mentioned in the “MOU-44”, and it is unclear what the meaning of a small u-shape indentation near Koh Kood on the map attached to the “MOU-44” actually is.

What Thai legal experts worry about is the acknowledgement in the “MOU-44” that “there exists an area of overlapping claims (the Overlapping Claims Area)” in which the two countries have claims to territorial sea, continental shelf, and exclusive economic zone in the Gulf of Thailand.

Since the coastal province of Trat and Koh Kood, which is a district of Trat, are under Thailand’s sovereignty, there should not be any dispute concerning Thailand’s maritime rights of the territorial sea of 12 nautical miles (22.224 kms) off Trat’s and Koh Kood’s shorelines, as well as the contiguous zone of 12 nautical miles beyond Thailand’s territorial sea, and continental shelf of 200 nautical miles from Thailand’s shorelines in Trat and Koh Kood.

Koh Kood is only about 44 nautical miles from Trat’s shore. This means the sea between the island and the Thai province is within Thailand’s territorial sea and contiguous zone combined. In a contiguous zone, a coastal state has full authority over customs, fiscal, immigration, and sanitation matters.

Koh Kood has a land area of about 105 square kilometres and a population of about 2,600. It is naturally formed and is above sea water at high tide, and it qualifies to have maritime rights of the territorial sea, contiguous zone, continental shelf, and exclusive economic zone, just like land territory, in accordance with Article 121 of UNCLOS. This is the advantage Thailand has in claiming ownership of Koh Kood under the law of the sea, which Cambodia has not recognised in the “MOU-44”.

All in all, under UNCLOS, Thailand stands to gain a lot more maritime rights in the Gulf of Thailand, particularly around Koh Kood. This is a good reason for the Paetongtarn Administration to abandon the “MOU-44” and to urge Phnom Penh to ratify UNCLOS, so that the two governments can settle their differences based on the same set of principles expressed in UNCLOS.

KOH KOOD NOT IN DISPUTE?

In the wake of an uproar against the “MOU-44”, numerous senior Thai officials have reaffirmed Thailand’s sovereignty over Koh Kood.

Defence Minister Phumtham Wechayachai, who has been tipped to head the Thai side on the JTC, made an urgent visit to Koh Kood on 9 November to reassure the locals that the government would defend their well-being and uphold Thailand’s sovereignty over the island. He emphasised that there was no dispute with Cambodia over Koh Kood, and blamed opposition parties and other critics for “spreading confusion” to discredit the government.

Part of the confusion seems to have arisen from Prime Minister Paetongtarn’s misunderstanding of the “MOU-44”. In a press conference at the Government House on 4 November, she claimed that it could not be unilaterally scrapped because it is an “international agreement”; and Cambodia could sue for compensation if Thailand wants to cancel it.

She reiterated that Koh Kood belongs to Thailand, and the “MOU-44” does nothing to erode Thailand’s sovereignty over the island.

She also stated her government’s decision not to abandon the “MOU-44”, but instead to speed up preparations to resume negotiation with Phnom Penh using the “MOU-44” as the framework. In this regard, a Thai team to join the JTC will be established as soon as possible.

In fact, the “MOU-44” is merely a record of political understanding on a framework for bilateral negotiations. It has never been endorsed by the Thai parliament because it is not an international agreement.

The Abhisit Administration did make a cabinet’s decision on 10 November 2009 to terminate the “MOU-44”. However, it failed to complete domestic procedures to formally endorse the cancellation. That was when Thailand and Cambodia were locked in a bloody confrontation around the Khao Phra Viharn border cliff temple.

The Thai failed attempt to scrap the “MOU-44” was in retaliation to Prime Minister Hun Sen for his appointment in May 2009 of Thaksin as his special senior economic advisor. At that time, Thaksin was then a wanted fugitive, running from Thailand to avoid a two-year jail term.

Personal ties between Hun Sen and Thaksin have created confusion and speculation. Two days after Thaksin’s release on parole from the Police General Hospital in early last February, Hun Sen visited Thaksin at his residence. Their intimate ties have created doubts on whether the two strongmen have any secret deals for their common personal interest, including a deal for the proposed joint exploration of petroleum resources in the Gulf of Thailand.

On his part, Thaksin claimed that “Koh Kood belongs to Thailand one million percent”, and blamed unscrupulous provocateurs for spreading “fake news” to create confusion.

Notwithstanding Thailand’s recent assertations of ownership of Koh Kood, Cambodian Prime Minister General Hun Manet has spoken about Koh Kood at least twice in recent weeks. On 21 November, he told a gathering of about 8,000 students of the Royal University of Phnom Penh that “we will not lose our territory or sovereignty…” He also stated that news about losing Koh Kood to Thailand was false, since a final agreement on maritime claims of Cambodia and Thailand in the Gulf of Thailand has not yet been reached.

Furthermore, on 11 December, General Hun Manet reportedly stated that Thailand and Cambodia had agreed on 42 of 73 border demarcation posts along the 805-kilometre border. On Koh Kood, negotiations had been ongoing; Cambodia had never ceded the island to Thailand.

However, since land territory demarcation between Thailand and Cambodia has been only partially done, a serious question arises: on what basis can Cambodia justify its controversial claim of part of Koh Kood, assuming that Cambodia drew its line of claims from a baseline onshore?

Clearly there are different understandings in Phnom Penh and in Bangkok concerning Koh Kood.

Thailand does not recognise Cambodia’s claim to any part of Koh Kood. In this connection, Thailand’s Office of the Council of State (the most authoritative body to counsel the government on all legal matters) has advised the Paetongtarn Administration to stop using the term “area of overlapping claims” [พื้นที่ทับซ้อน], but to use instead “area of claims” [ พื้นที่อ้างสิทธิ ] to describe the situation in which Thailand and Cambodia have different maritime claims in the Gulf of Thailand. Pakorn Nilprapan, head of the Office, has clarified that the “MOU-44” can be unilaterally cancelled by Thailand, although he believes the “MOU-44” is still useful and should be maintained.

BLESSING IN DISGUISE

Thailand and Cambodia have so far failed to achieve any breakthrough in their negotiations under the “MOU-44”. This is due chiefly to the stated understanding of the two countries to tackle simultaneously in an “indivisible package” both their conflicting maritime claims near Koh Kood and their intentions to go into joint exploration of petroleum resources in lower Gulf of Thailand. In other words, the maritime delimitation must be settled along with an arrangement for the joint exploration; the latter cannot proceed without the former.

During the Thaksin Administration (17 February 2001 – 19 September 2006), oil exploration concessions in the Thailand-Cambodia joint development area were tentatively granted to Chevron, Petroleum Authority of Thailand, and a few others, pending a final agreement on the joint exploration. Undoubtedly, the Hun Sen Administration had done likewise. But it is unclear whether these old concessions are still valid.

During the Prayut Administration, the two countries held only one meeting of their representatives on the JTC. General Prawit Wongsuwan, when he was the defence minister, led the Thai delegation to a JTC meeting in October 2021. His Cambodian counterpart reportedly called for Thailand’s recognition of Cambodia’s claim to about half of Koh Kood as shown in its official map published on 12 September 1972; at the very least, the Cambodian side wanted to transform Koh Kood into a joint Cambodian-Thai special economic zone. General Prawit turned down the Cambodian suggestions. In its turn, the Prayut Administration did not disclose the Cambodian proposals for fear of stirring up anti-Cambodia sentiments.

General Prawit’s Palang Pracharat Party, which is now in the opposition, has called for an immediate termination of the “MOU-44” because he believes that continuing to use it could lead to territorial and maritime losses.

The requirement of taking both the delimitation of maritime zones and the joint exploration as one “indivisible package” has turned out to be a blessing in disguise. It has prevented the two sides from rushing into doing the joint exploration without first settling the existing conflicting claims of maritime rights.

This seems to be the main reason for the Thai Ministry of Foreign Affairs to voice support for the “MOU-44”. Another reason is that the “MOU-44” includes a caveat to the effect that while awaiting the entry into force of a final agreement on the delimitation of the two parties’ respective maritime claims in the area near 11 degree latitude north, actions taken under the “MOU-44” “are without prejudice to the maritime claims of either party”.

GATHERING POLITICAL STORM

A group of media influencers and activists who oppose the Shinawatra family has emerged to mobilise public support to demand cancellation of the “MOU-44”. One of the most vocal, Sondhi Limthongkul, founder of the Manager Media Group, submitted a petition containing six demands to the Government House on 9 December, and gave the Paetongtarn Administration 15 days to decide.

Should the Paetongtarn Administration ignore his demands, Sondhi threatened to start his “last war” on the street at his old age of 78.

However, it is doubtful whether Sondhi’s leadership will be as successful as when he led the People Alliance for Democracy of the “Yellow Shirts” in opposing the Thaksin Administration in 2006. Turmoil and violence in clashes between the “Yellow Shirts” and the “Red Shirts” who supported Thaksin eventually led to the coup on 19 September 2006 which toppled Thaksin while he was in New York waiting to address the UN General Assembly.

As expected, the Paetongtarn Administration ignored Sondhi’s demands. But instead of starting a street demonstration, Sondhi and group are seeking help from the Constitutional Court.

At issue is whether the Paetongtarn Administration can resume negotiation with Phnom Penh on any maritime rights and boundary without parliamentary approval and without the consent of the King. The “MOU-44” has never been submitted to the Thai parliament; neither has it ever been published in the Royal Gazette – because it is not an international agreement. Uncertainty concerning this legal question seems to have delayed the Paetongtarn Administration from appointing Thai negotiators to meet their Cambodian counterparts on the JTC of the “MOU-44”.

At issue is whether the Paetongtarn Administration can resume negotiation with Phnom Penh on any maritime rights and boundary without parliamentary approval and without the consent of the King.

Sondhi and his group have urged the Cabinet to take a decision to submit the “MOU-44” for a ruling by the Constitutional Court. Should the Cabinet fail to do that, then some individuals would file a petition at the Constitutional Court.

If nothing is done to cancel the “MOU-44”, Sondhi and his group intend to step up pressure on the Paetongtarn Administration in early 2025.

CONCLUSION

The crux of the problem is in Cambodia’s challenge to Thailand’s sovereignty over Koh Kood.

The controversial “MOU-44” exposes Thailand to a risk of giving “tacit acceptance” of a dispute with Cambodia on the popular tourist island; hence the advice of the Office of the Council of State to avoid using the term “area of overlapping claims”.

Thailand stands to gain more maritime rights by cancelling the “MOU-44” and exerting its claims under UNCLOS, Thailand had already ratified in May 2011, while Cambodia has not. Under UNCLOS, Koh Kood generates a great deal of maritime rights for Thailand, much more than those implicitly recognised under the “MOU-44”.

The Paetongtarn Administration has not cleared all lingering public doubts about why it is following Thaksin’s advice to resume negotiation with Phnom Penh using the “MOU-44” as the framework.

An ominous political storm is gathering in Thailand. Should the “last war” break out, neither Sondhi nor Thaksin and Paetongtarn can afford to lose.

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This is an adapted version of ISEAS Perspective 2025/6 published on 22 January 2025. The paper and its references can be accessed at this link.