Scrapping of Gulf agreement could prove a nuisance

Abhisit Vejjajiva's Cabinet decided to terminate the memorandum of understanding (MoU) on overlapping areas claimed by both countries signed in 2001 shortly after Cambodian Prime Minister Hun Sen appointed fugitive ex-PM Thaksin Shinawatra as an economic adviser.

In fact, the government has been so angry about the appointment all it has been doing is retaliating.

Many experts have urged the government to review its decisions and calculate the costs and benefits. Will the country end up losing more from these moves?

The government explained that its decision stemmed from the fact Thaksin was the main negotiator of the deal and that it had to be scrapped because he had switched sides. The government believes the former PM might divulge Thai secrets to the Cambodians.

In reality though, Thaksin had nothing to do with the deal, which was negotiated by the then-foreign minister Surakiart Sathirathai. The only people who knew all details of the deal were Foreign Ministry officials, some of whom are still with the government, while others have retired. As the top boss, Thaksin might have known something about the pact, but it is ridiculous to say that he knows everything.

Therefore, it is hard to justify reasons such as this to scrap the deal, although experts at the Foreign Ministry have given legal explanations to validate the decision. They referred to Articles 56 and 62 of the 1969 Vienna Convention on the Law of Treaties.

Article 56 says that in cases where treaties do not have a clause on denunciation or withdrawal, they can only be terminated if both parties agree upon the possibility of denunciation or if the right of denunciation can be implied by the nature of the treaty.

If this is taken into consideration, the termination cannot be justified.

Article 62 of the convention, which is based on fundamental changes in circumstance cannot be applied either. The fundamental change that can be deemed the cause for termination would have to "radically transform the extent of obligations still to be performed under the treaty". Thaksin's appointment cannot be regarded as a "fundamental change of circumstances" because he is neither a signatory nor a subject of the treaty.

In fact, the MoU does not include anything that could be seen as favouring either party. All the document notes is that the two parties agree to have a joint technical committee draw up terms of joint development and delimitation of the territorial sea.

The document is an agreement to discuss the matter. So, if the Abhisit government sees no benefits from any negotiation, all it needs to do is not call a meeting. There's no need to scrap the entire deal.

Actually, this government is not really concerned about the MoU itself, but more about the overlapping areas included in the deal, which some officials at the Foreign Ministry say were drawn up without proper geographical references.

Officials against the MoU claim that the map emerged in a way that favours Cambodia, while some question how officials at the Thai Foreign Minister could draw up a chart for Cambodia.

The pact is debatable anyway, because some say that in the deal Cambodia confirms that Koh Kut belongs to Thailand. It is true that Phnom Penh has never claimed sovereignty over the island, but as long as it can confirm this, many officials at the ministry say it would be useful for negotiating sea boundaries.

However, with the MoU scrapped, Thailand has lost another document confirming its right over the island.

Besides, the government will not be able to fulfil its hope to come up with a new maritime MoU with Cambodia, because not only would that be time-consuming, it could only be proposed once relations return to normal. And the current administration may not last that long.

Also there's no guarantee that the new deal would be any better than the one that was just scrapped.