Both governments have now told a five-member panel what their case is about. Under the Convention the answer is the panel’s, and the whole procedure ends in a negotiation.
On 26 May Cambodia withdrew a declaration it had lodged with the United Nations in February. It took effect the same day. Seven days later Cambodia opened a case against Thailand over the sea boundary in the Gulf of Thailand, in the stretch where the two countries’ claims overlap.
The withdrawal is one page, filed with the Secretary-General of the United Nations, who keeps the official record of what each state has signed up to. What it took away was Cambodia’s own exemption from compulsory dispute procedures on sea boundaries. The other exemptions Cambodia filed that February day stayed where they were.
Then came Singapore. On 15 September each government sent its Agent to tell the five conciliators hearing the case what the case is for. An Agent is the person a state appoints to speak for it in a proceeding of this kind. Sihasak Phuangketkeow told them the scope of the proceedings concerns only maritime boundary delimitation, which means agreeing where the line runs. Prak Sokhonn asked for a boundary treaty, or failing that an agreement to develop and share the resources under the disputed water, or failing both a report with recommendations. Both statements are in my report from the hearing.
Conciliation is not a court. A panel hears both sides and writes recommendations, and the parties are free to reject what it writes. The unusual part here is that Cambodia could start it alone, and the reason for that sits in a single provision.
Article 298 of the UN Convention on the Law of the Sea lets a state file a declaration, which keeps sea boundary disputes out of the Convention’s courts and tribunals. Thailand filed one in 2011. Cambodia filed one in February. The same subparagraph then obliges a state claiming that exemption to accept conciliation anyway, and it attaches three conditions and two carve-outs to the obligation.
The conditions first. The dispute has to have arisen after the Convention came into force. Negotiations have to have failed to produce agreement within a reasonable period. And a party has to ask. Then the carve-outs. One is a dispute that cannot be decided without settling a quarrel over land sovereignty at the same time. The other is a dispute the two states have already settled between themselves, or are bound by some other agreement to settle another way. Five gates. In Singapore neither Agent cited a provision of the Convention, and neither objected to the panel’s power to hear the case.
Paragraph 3 of the same article cuts the other way. A state holding the exemption cannot put an excepted dispute to a Convention procedure against another state without that state’s consent. Paragraph 4 lets any other state bring such a dispute against a state that holds one. On 2 June, when Cambodia filed, Thailand held the exemption and Cambodia did not.
To my reading paragraph 3 therefore bore on Thailand’s position that day rather than on Cambodia’s. It does nothing to the five gates, which are for the conciliators to rule on.
A treaty can give a question to a body and describe that body’s job by the result it is meant to reach, rather than by how the parties characterise their quarrel. This one does. Where a treaty does that, a government’s public account of what the proceeding is for is a submission, not a limit.
For Thailand that turns the scope sentence into an argument the conciliators may accept or refuse. For Cambodia it cuts deeper, because Cambodia’s Agent has invoked the only previous case of this kind, the conciliation between Timor-Leste and Australia decided in 2016. There the commission read the Convention’s two delimitation articles as covering more than the final line: the transitional period before it, and the provisional arrangements neighbours are told to make meanwhile. A request to consider transitional arrangements therefore lay inside the scope. That commission also doubted that the document starting a case strictly fixes what may be discussed.
None of that binds anyone in Singapore. Annex V is the part of the Convention that sets up conciliation. It gives each commission its own competence question, meaning whether it may hear what it has been asked to hear, and leaves the answer to the commission itself. The Timor Sea decision never mentions paragraph 3. The situation it never reached, a state asking for conciliation while still holding the exemption, is not Cambodia’s either, because by 2 June Cambodia held none.
The strongest argument against me is not Thailand’s. Annex V says what a commission may propose once it has a case, and says nothing about what it has been given. What it has been given is fixed by the notification Cambodia filed on 2 June, the written document that starts a compulsory conciliation, read with the category in Article 298, and that category is delimitation. On that reading Thailand’s sentence describes the proceeding rather than shrinking it, and Cambodia’s second request is something a panel might think appropriate rather than part of the subject matter. Cambodia’s notification has never been published, so the one document that would test this cannot be read.
That reading stands, so the claim I am left with is the narrower one. Not that the panel may take in joint development. Only that whatever either minister said in Singapore, the answer comes from the words of two instruments and from the five people reading them.
Under Annex V the commission has twelve months from the day it is constituted to write its report, and neither government has to accept what it says. Article 298 says what follows: the two governments negotiate on the basis of that report, and if that fails, anything compulsory after it needs both of them to agree. A procedure one state can begin alone ends at a table both have to sit at voluntarily. Cambodia’s own third request describes that ending, which is a report with recommendations the two could build an agreement on later.
If there is a provision in Article 298 or in Annex V that lets either government’s own account of the matter bind the commission, this argument is wrong. It is wrong just as cleanly if any step in this procedure ends in something a state can be made to accept. Until then, the quarrel staged in Singapore is a quarrel about what five people may write down, rather than about what either government will afterwards have to do.
