By Tunku Prof. Datuk Dr. Sofiah Jewa
The New Straits Times
18 Jan 2018
As Malaysia and Thailand celebrate the 60th anniversary of cordial and unbroken diplomatic ties, the plea in the letter from Nipa Nirannoot, minister-counsellor of the Royal Thai Embassy, Kuala Lumpur, on “Malaysia-Thailand Cross-border pact crucial” (NST, Jan 13), requires prompt and sympathetic response from the relevant Malaysian authorities.
To my mind, we need to peruse the terms of three earlier treaties — the Burney Treaty of 1826, Bowring Treaty (1855) and Anglo-Siamese Treaty (1909) — entered into between Siam and the United Kingdom, before we can fully appreciate the anxiety of the Thai diplomat.
The Burney Treaty was signed in Bangkok on June 20, 1826 on behalf of King Rama III (Nang Klao) by Prince Devavongse Varopakarn, son of King Mongkut (later Rama IV) for Siam and Henry Burney, an agent on the payroll of the British East India Company, for the UK. The treaty acknowledged Siamese claims over the four northern Malay states of Kedah, Kelantan, Perlis and Terengganu.
The UK was unhappy with the terms of the Burney Treaty since (from the British viewpoint) it did not adequately address commerce. And so, on April 18, 1855 the Treaty of Friendship and Commerce was entered into between Siam and the UK. King Mongkut (Rama IV) was the Siamese king at that time and, according to some historians, he appointed five Siamese Plenipotentiaries, namely His Royal Highness Krom Hluang Wongsa Dhiraj Snidh; His Excellency Somdetch Chau Phaya Param Maha Payurawongse; His Excellency Somdetch Chau Phaya Param Maha Bijai-neate; His Excellency Chau Phaya Sri Suriwongse Samuha Phra Kalahome; and His Excellency Chau Phaya, Acting Phra-Klang to sign the Treaty on his behalf.
The British, on the other hand, appointed Sir John Bowring, the British Governor of Hong Kong, to represent British Queen Victoria. As the signing of the treaty was taking place in Bangkok, two British gunboats, the Rattler and the Grecian were anchored slightly off the shore of the Siamese capital. Ostensibly executed to liberalize trade rules and regulations, Professor Junko Koizumi of the Centre for Southeast Asian Studies at Kyoto University described its signing as an example of gunboat diplomacy, a trend invariably resorted to by powerful western nations over weak trading partners. The treaty, containing stipulations such as three per cent ad valorem import duties also invoked the extraterritoriality principle whereby British nationals in Siam were exempted from the jurisdiction of Siamese laws.
Under international law the Bowring Treaty (1855) is a typical example of an unequal treaty, a practice universally condemned under current international law (see Siamese Inter-State Relations in the Late 19th Century: From An Asian Regional Perspective —Taiwan Journal of Southeast Asian Studies, 5 (1):65-92 (2008).
The Anglo-Siamese Treaty of 1909 (or the 1909 Bangkok Treaty) was signed on March 10 in Bangkok, by King Chulalongkorn (Rama V)’s half brother and the 42nd child of King Mongkut, Devawongse Varoprakar. Sir Ralph Spencer Paget, the British Ambassador to Siam, signed for the UK. The 1909 Treaty transferred Kelantan, Terengganu, Kedah and Perlis to the UK. Article 3 of the Treaty provides for the formation of a Mixed Commission, composed of Siamese and British officials.
Although the Mixed Commission duly completed its assigned task, difficulties over legal interpretations of some of its decisions survive to this very day. As the Malay States under the Treaty had no sovereignty of their own when the Treaty was signed, Malaysia and Thailand as successor states of the Treaty have, for years, been negotiating for a fair and equitable settlement.
It is to the credit of the wisdom of leaders of both Thailand and Malaysia that none of the disputes has resulted in aggression between the two countries.
An example of how Malaysia and Thailand resolved one of their border disputes is worth examining. Malaysia and Thailand’s dispute over the continental shelf boundary between Malaysia and Thailand arose from the different baselines for Thailand which the two countries adopt in calculating the equidistant line of each country’s boundary. Thailand’s proclaimed baseline runs from the terminus at Kuala Tabar (the eastern terminus of the Malaysia-Thailand land border as defined by the 1909 Anglo-Siamese Treaty) northwards to Ko Losin islet and then northwestwards to Ko Kra. Malaysia, however, does not regard Ko Losin as a valid baseline point and calculates the equidistant line on a baseline running along the shore. While both countries have agreed on Oct 24, 1979 on their maritime boundary for this area running 29 nautical miles (54km) out to sea, the boundary beyond the northeastern terminus of the territorial sea is subject to dispute. Malaysia’s continental shelf boundary extends from the terminus at coordinate 07 49′ N, 103 02′ 30″ E. It corresponds to Point 43 in a 1979 map published by Malaysia denoting its territorial sea and continental shelf. Thailand claims its continental shelf boundary extends from the terminus to co-ordinate 07 22′.0 N, 103 42′ 30″ E. A small slice of the disputed area is also subjected to a claim by Vietnam. As a temporary solution, Malaysia and Thailand on Feb 21, 1979 signed a memorandum of understanding to create a 7,250sq km joint development area encompassing the entire disputed area. This was followed by an agreement on May 30, 1990. The agreement allows for joint exploitation and benefit of natural resources in the area.
In 1999, Malaysia, Thailand and Vietnam reached an agreement based on the principle of joint development for the area where the three countries have overlapping claims.
All the agreements specifically state that they do not compromise each country’s sovereignty claim over the disputed area.
The Malaysia-Thailand Joint Development Area is a 7,250sq km area in the Gulf of Thailand which was created as an interim measure to deal with the overlapping claims of the continental shelf between the two countries. The formula allows for both countries to share the non-living natural resources from the area on a 50:50 basis. It, however, does not extinguish the sovereignty claims by both countries over the area.
Of all our neighbors, Malaysia and Thailand share the longest land border stretching some 640km.
Since Merdeka, leaders of Malaysia and Thailand have been cooperating with one another in combating crimes common to both sides of our common border.
In his memoirs, my uncle and Malaysia’s Founding father Tunku Abdul Rahman Putra Al-Haj remembers with deep gratitude how, when he did not have much money, the King of Thailand had personally come to his assistance by giving him a substantial sum of money to be used in our struggle for Merdeka. And, again during the difficult period of communist insurgency and confrontation with Indonesia, Malaysia was literally isolated.
We had, nonetheless, a great friend in His Majesty Bhumibol Adulyadej, the King of Thailand and Field Marshall Thanom Kittikachorn, the Thai Premier as well as Thanat Khoman, the Foreign Minister for their hand of friendship.
A few months before Tunku retired as prime minister, a Joint Defence Agreement was signed with Thailand to provide Malaysian troops more freedom of movement in the Thai border area.
The Diamond Jubilee of friendship between neighboring friends should go on, in the words of the famous 1960s American singer, Earl Grant, “till the end of time”. Let us preserve and revere our special relationship with Thailand.
*Tunku Prof Datuk Dr Sofiah Jewa is Adjunct Professor, Faculty of Law, Universiti Malaya.
(Accessible at: https://www.nst.com.my/opinion/columnists/2018/01/326243/preserving-special-relationship )
