Legal Aspects of the Coastal Zone Management: On-going Process of ICZM in Thailand

• Author: Kanongnij Sribuaiam
• Position: Associate Professor & Deputy Director on Research, Law and Development Research Center at the Faculty of Law of Chulalongkorn University, Thailand. LL.B/LL.M.(Chulalongkorn), LL.M.(Harvard), Docteur en Droit (Nantes)
• Pages: 345-380

Page 346

I Introduction

A “coastal zone”is defined as the interface where land and sea meet. It is also known as a heavily exploited area due to its highly valued natural resources. These natural resources not only provide habitats for human settlements, local subsistence and economic development, but also support aquatic and terrestrial living organisms for their food, shelter and habitation. In coastal countries, the population in the coastal zones is increasing, which leads to more conflicts involving the resources used by different users for different purposes. As a result, coastal zones are under constant pressure, resulting in degradation which leads to negative social and economic consequences. To cope with these problems and related aspects such as the conflicts among various stakeholders and policies regulating overexploitation of resources, an effective mechanism is needed in order to maintain and restore the coastal zones, and coordinate different policies in managing the resources. In light of this, a new management system called the Integrated Coastal Zone Management (“ICZM”) is being proposed for implementation in the national strategies of many coastal countries.

Coastal areas are significant resources for Thailand in terms of human settlement and economy. For example, major industries such as oil refineries and petrochemical plants are usually located along the coastline, especially on the east coast. Aquaculture, fisheries and tourism are also major economic activities in the coastal zones, contributing large amounts of income at both the local and national scales. Therefore, Thailand’ s economic activities are centered around these areas and thus, intensively put these areas under pressure. To withstand such pressure and fill gaps in the existing coastal management, ICZM is being introduced to Thailand as a new mechanism to protect the environment and to promote sustainable development of the coastal zone. This new mechanism includes cross-sectoral management, strategic environmental assessment and local community participation. To initiate ICZM in the Thai system, it is necessary to explore the relevant concepts of the coastal zone. After this comparative analysis, ICZM, as a new concept of management, needs to be well identified and finally, the method of applying such a management system must be developed.

II Revisiting Concepts Relevant to the Coast

As a ramification of a shift from the old paradigm of “Freedom of the Sea”to the newPage 347paradigm of “The Law of the Sea,”the area of the high seas was vastly reduced, while the area of the territorial sea was significantly extended.

A “Freedom of the Sea”: An Old Paradigm of the World’s Ocean Governance

In 1493, the world was divided by Pope Alexander VI into two - the west and the eastof which Spain occupied the area west and Portugal the area east of the Azores. With the effort of Spain in claiming exclusive navigation rights of the western Atlantic Ocean and that of Portugal in claiming the same rights for the southern Atlantic Ocean and Indian Ocean, the world’ s oceans during the fifteenth century were also divided.¹ As a result, the doctrine of “Freedom of the Seas”was developed in the seventeenth century as a reaction of the Dutch who had a strong interest in trading with the East Indies through the Dutch East India Company. This concept originated from the famous treatise Mare Liberum² which was written in 1609 by Hugo Grotius, a Dutch jurist. He referred to the fluid and mobile nature of the sea to explain the impossibility and impracticality of considering the ocean as “property”that can be divided, owned, or occupied. He applied “natural law”theory and endorsed the necessity of leaving the oceans open for the purposes of intercommunication and free trade among the world’ s nations separated by water.³ For about 400 years, until the middle of the twentieth century, “Freedom of the Seas”was the dominant paradigm for governance of the world’s oceans.4

Although the concept of “Freedom of the Seas”was supported by coastal nations, the nations still needed to control the band of sea which was immediately adjacent to the shorelines as a protective zone against armed ships for security reasons. Control of the coastlines was developed by custom during the late eighteenth century as the concept of the territorial sea.5 Within this zone, the coastal nations could control fishing,Page 348set customs, exert police power and allow “innocent passage”of foreign vessels passing through the zone. Coastal nations possessed territorial seas which were relatively narrow. National activities beyond such territorial waters were limited primarily to navigation, coastal fishing, and in a few cases, distant-water fishing and cable lines.⁶

B Paradigm Shift: from the “Freedom of the Sea”to the “Law of the Sea”

Unlike the stable period of “Freedom of the Seas”which represented the old paradigm of the world’s ocean governance from the 1600s until the end of World War II, the second period of the law of the sea which represented the new paradigm since 1945 has seen a constant growth of international and national activities relating to ocean law and policy. In response to the discoveries of oil and gas in the Gulf of Mexico, new development was initiated by the United States to assert jurisdiction over the resources of the continental shelf up to 200 nautical miles from shore. This put pressure on the development of international norms in using different zones of the seas and the ocean. Starting in 1958, three conferences on the law of the sea were held by the United Nations focusing on the rights and duties of nations regarding the ocean.⁷

The first United Nations Conference on the Law of the Sea (“UNCLOS I”) was held in Geneva in 1958 and the second United Nations Conference on the Law of the Sea ( “UNCLOS II” ) was held in 1960. UNCLOS I introduced four conventions at the global level: (1) the Convention on the Territorial Sea; (2) the Convention on the High Seas which recognized the freedom of fishing; (3) the Convention on the Continental Shelf which recognized the coastal State’ s sovereign right to explore and exploit its natural resources, including living organisms belonging to sedentary species; and 4) the Convention on Fishing and Conservation of the Living Resources of the High Seas which recognized the right of fishing in the high seas.⁸ With the lack of “legal solidarity” among them, however, the four conventions were not linked and were regarded as an ad hoc approach.⁹

Although these four conventions were widely accepted as codifying international law, major issues such as the allowable breadth of territorial sea and continental shelf claims and responses to increase of stresses on fishery stocks and the marine environment were not adequately addressed.¹⁰ Attempts of both UNCLOS I andPage 349UNCLOS II to establish a special coastal fishery control limit of up to 12 nautical miles failed. As a result, most coastal States claim an Exclusive Economic Zone of up to 200 nautical miles from their baselines in order to control foreign fishing.¹¹

The third United Nations Conference on the Law of the Sea (“UNCLOS III”) was convened in 1973. After the long process of negotiation, drafting, consensus building and decision making in 1982,12 UNCLOS III finally adopted the United Nations...