H.E. Var Kim Hong
Advisor to the Royal Government in Charge of State Border Affairs,
Chairman of Cambodia-Vietnam Joint Border Commission
Council of Ministers
Phnom Penh, Cambodia
10 February 2003
Re: Interview With the Radio Free Asia on Border Affairs.
I refer to your interview with Mr Sam Borin on Radio Free Asia on 28 January 2003 in relation to the current border affairs. The following is a summary of the important points made by Your Excellency:
(1) the Treaty on of Peace, Friendship and Cooperation (1979), Agreement on Historical Waters (1982), the Agreement on the Principle for Settlement of Border Disputes (1983), National Border Delimitation (1985), (and I add the Working Arrangement Line (1991), concluded between H.E Heng Samrin-H.E Hun Sen and Vietnam) are still in force because:
(a) The above accords are not incompatible with the Paris Peace Accords (23 October) 1991 because they do not affect Cambodia’s territorial integrity and neutrality; and
(b) Your Excellency has been using them as a basis of the current border negotiations;
(2) People misunderstood Samdech Hun Sen’s Letter to His Majesty the King dated 31 July 2000. The Paris Peace Accords did not automatically nullify these treaties or agreements. Cambodia has to terminate them for them to be nullified.
Set out below is my humble opinion on each of Your Excellency comments addressing each of the points above.
In my opinion, the treaties and agreements listed in paragraph 1 above are incompatible with the Paris Peace Accords 1991. They affect the territorial integrity, sovereignty and neutrality of Cambodia in the following manner.
1. Treaty of Peace, Friendship and Co-operation 1979 (“1979 Treaty”).
1.A. From a brief glance at the 1979 Treaty, it appears that Cambodia signed the treaty as an independent nation. However, most, if not all of us, know that when this Treaty was signed, Cambodia was under Vietnam’s power (military aggression and dictatorship, and according to various reports, there were about 200,000 Vietnamese troops in Cambodia. In fact, none of the four accords listed above provides for Cambodia to be a neutral state. On closer inspection, the treaty provides for a military alliance. Article 2 of the 1979 Treaty stipulates that parties
“undertake to whole-heartedly support and assist each other in all domains…in order to strengthen…each country against all schemes and acts of sabotage by imperialist and international reactionary forces”.
1.B. Article 5 of same treaty refers to the “importance [of] the long-standing tradition of militant solidarity [yuddhsammaki] and fraternal friendship between the Kampuchean, Lao and Vietnamese peoples.” Clearly, these articles provide for military partnership between Cambodia and Vietnam.
1.C. For the above reasons, the1979 Treaty is incompatible with the neutrality status as stipulated under the Paris Peace Accords. Article 1(2)(d) of the Paris Peace Accords 1991, provides that Cambodia promises:
“to terminate treaties and agreements that are incompatible with its…neutrality”.
1.D. The view that 1979 Treaty is not compatible with the Paris Accords has its supporters. Professor Steve Ratner, who was the Attorney-Advisor of the Office of Advisor of the US State Department and was a member of U.S delegation to the Paris Peace Conference, states that in his opinion this Treaty is incompatible with Paris Accords: (Steven R. Ratner, The Cambodia Settlement Agreements,” American Journal of International Law. 87(1)(1993)).
1.2. Agreement on the Historical Waters 1982, Agreement on the Working Arrangement Line 1991.
1.2.A. The commercial joint profit making and joint military patrols between Vietnam and Cambodia in Cambodia’s waters aside, the Historical Waters agreement 1982 provided the foundation on which the Vietnam-Thailand maritime delimitation agreement (1997) was based. According to a chart attached to this 1997 treaty, the agreed boundary between Vietnam and Thailand is the straight line from Point ‘C’ (7° 49’ 00” N; 103° 2’ 30” E) to Point ‘K’ (8° 46’ 54” N; 102° 12’ 12” E) was, according to Nguyen Hong Trao the Deputy Director of the Marine Affair Department of Vietnam, based on Vietnam-Cambodia agreement on “Working Arrangement line” 1991: (Nguyen Hong Trao, “Vietnam’s First Maritime Boundary Agreement”, Boundary & Security Bulletin 5(3)(1997).
1.2.B. This “working arrangement” line is the straight line between Koh Paulo Wai (Khmer) and Tho Chu Archipelago (Vietnamese) as stipulated in Article 1(4) of the Historical Waters agreement 1982, the coordinates of which are: 09° 55’ 0” N; 102° 53’ 5” E, to 09° 15’ 0” N; 103° 27’ 0” E.
1.2.C. If it is anything, the working arrangement line, which was agreed between the illegitimate government of State of Cambodia and Vietnam, is a reinforcement of the 1982 Agreement. The Cambodian public has not been informed of the “working arrangement”.
1.2.D. The 1997 Vietnam-Thailand maritime agreement infringes Cambodia’s territorial waters because Point ‘K’, as mentioned above, is situated north of the Brevie Line, which in 1967 Vietnam recognized as the maritime boundary between Cambodia and Vietnam.
1.2.E. The Brevie Line is a colonial administrative decision/division therefore the doctrine of Uti Possidetis applies in the same way as it does in relation to terrestrial boundaries: (Guinea-Bissau v. Senegal vol. 83 I.L.R 1 1989; El Savador/Hondura case I.C.J Rep. 1992, p.58).
1.2.F. In addition, by this 1997 agreement, both Thailand and Vietnam effectively ignored Cambodia’s 1972 claim, while their 1971 (Thailand) and 1973 unilateral claims (South Vietnam), respectively, are maintained.
1.2.G. Thus, the Cambodia-Vietnam’s military joint patrol provided for under 1982 agreement breaches Cambodia territorial integrity, and the use of 1982 agreement and working arrangement line for which the 1997 agreement violates the Paris Peace Accords.
1.3. Treaty on the National Border Delimitation 1985.
1.3.A. Again, the preamble of this Treaty contains the phrase “militant solidarity” or yuddhsammaki, which is tantamount to military alliance and thus violates Cambodia’s neutrality, as stipulated in Article 1(2)(d) of Paris Peace Accords.
1.3.B. It is a fact that the current land border negotiations on the so-called seven areas of dispute are not a result of the 1985 Treaty. This Treaty was a final agreement on a precise alignment of borderline and contained precise and accurate coordinates (Niyeamakar). It left no outstanding disputes or points for negotiation. Under this treaty, Cambodia awarded all the disputed areas to Vietnam as marked with “red cross marks” on the SGI 1/100,000 scale map and marked with black signs similar to a lying capital “I” on the USDMATC 1/50,000 scale map. These two maps attached to the 1985 Treaty were given equal value: (Article 1(20)&(21) of the 1985 Treaty).
1.3.C. Your Excellency and I know that the notorious seven areas of disputes are the disputes that date back to 1960s, under the first reign of His Majesty and afterward, the 1970s. These points of dispute were well studied by the United States Central Intelligence Agency in 1968 (see CIA Memorandum: Cambodia’s Boundary Problems dated 27 Feburary1968 and maps attached therein, and the U.S State Department’s Bureau of Intelligence and Research entitled “International Boundary Study: Cambodia-Vietnam dated 5 March 1976).
1.3.D. The disputed area number 4 Mondolkiri, now the only remaining land border dispute out of the 7 disputed areas detailed in both U.S studies above. What is striking is the U.S State Department Study 1976 also referred to this particular area as number 4 area of dispute. This dispute arose out of the discrepancies between the pre-1954 maps and the French Decree dated 31 July 1914 issued by Mr. Van Vollenhoven, the then Secretary General of the General Government of Indochina. This Decree provides for a boundary to follow the Dak Hoyt river to its source. Cambodia wanted this to be the boundary line, but Vietnam demanded that the boundary line follow Dak Dang river. H.E Hun Sen, under Article 1(7) of the 1985 Treaty, effectively awarded to/agreed with the Vietnam’s position, that is, the boundary was to follow the Dak Dang.
1.3.E. As Your Excellency is aware, the Dak Hoyt is formed by two tributaries, the Dak Hoyt to the south and the Dak Dang to the north. According to maps presented to North Vietnam and other relevant governments by Cambodia in 1964, the boundary on Dak Dang was scratched out and a new line was added along the Dak Hoyt river, making it conform to Article 3 (1) of the 1914 Decree. Article 3(1) stipulates:
“…It then joins point B in a straight line, intersecting the Prek-Chrieuv and the road from Kratie, turns to the east and follows the course of the Prek-Chrieuv to its source (point C). It then continues in a straight line to point D, where it meets the Prek-Mean or Djerman, following its course to its source, to end at the confluence of the Dak-Kle and the Dak Hoyt. It follows the latter to its source”.
1.3.F. The 1914 Decree is Uti Possidetis. Pre-1954 maps aside, according to this Decree, Vietnam’s claim is baseless, especially after its 1967 Declaration to respect and to recognize Cambodia’s sovereignty “within the limits of its present frontiers”. It is understood that Vietnam had accepted what was presented to it in 1964 by Cambodia.
1.3.G In addition, without the 1985 Treaty, the 1967 unilateral Declaration would, under international law, also be binding on Vietnam. Under international law, a unilateral declaration is binding: (Norway vs. Denmark (P.C.I.J. Rep. Series A/B No.52 (1933)
1.3.H. Furthermore, according to Parliamentary records of Your Excellency’s statements made to the National Assembly on 13 June 2002, Your Excellency stated that if compared to the colonial Service Geographique de l’Indochine scale map 1/100,000 and the 1985 delimitation treaty, Cambodia lost 9,000 hectares; and compared to U.S Defense Mapping Agency Topographic Centre scale map 1/50,000 with the 1985 Treaty, Cambodia would lose about 7,900 hectares.
1.3.I. For the above reasons, I submit that the 1985 Treaty affects territorial integrity and inviolability of Cambodia and thus violates Article 1(2) of the 1991 Paris Peace Accords.
2. Letter dated 31 July 2000 of Samdeach Hun Sen
2.1. Samdeach Hun Sen’ letter of 31 July 2000
to His Majesty states that (1) “Article 1(2) of October 23, 1991 of the
Paris Peace Accords specified in the following terms ‘terminate all treaties and agreements which are incompatible
with its sovereignty, its independence, its territorial integrity,
independence, and inviolability and its national unity.’ Legally speaking, the
article has a sufficient meaning to be applied to all treaties and agreements
which are incompatible to the ParisAccords”.
He went on to say in paragraph 2.2 of his letter that because Cambodia-Vietnam relations are being strengthened and improved “I think that the Royal Government ought not to issue an official and public statement nullifying the agreements and treaties with Vietnam at this time and allow the Khmer-Vietnam Joint Committee to pursue vigorous negotiations leading to final good results.”
2.2. I would like clarification of precisely what Samdeach Hun Sen meant by this. Without further explanation, one would have thought Samdeach meant that the 1979-1991 treaties were terminated by the fact of the execution of the Paris Accords without further action being necessary on the part of the Royal Government. However, looking at it most carefully at the contents of the first paragraph of his letter in conjunction of paragraph 2(2), it appears that what Samdeach actually meant was that the illegal treaties are intentionally still being kept intact. Statement of H.E. Senior Minister Sok An to the National Assembly of 13 June 2002 re-enforced the latter interpretation.
2.3. It is my submission that, contrary to what Your Excellency has previously stated, it is not necessary for Cambodia to terminate a treaty or all treaties before they become nullified. I hold this view for the reasons set out below.
2.4. Part V of the Vienna Convention on the Law of Treaties (1969) provides for the following five grounds for nullification of a treaty or agreement: (1) error; (2) fraud; (3) corruption; (4) coercion of a representative of a state; and (5) coercion of a state by threat or use of force.
2.4. The first three grounds render the treaty avoidable at the discretion/instance of the victim state. The fourth renders the expression of consent void. The fifth renders the treaty void ab initio.
2.5. The fact that Cambodia was under Vietnamese military occupation from 1979-1989 means that the 1979-1985 treaties fall within the fifth ground. Under international law, Vietnam committed an aggression against Cambodia, an international crime, for which Vietnam will be legally required to pay compensation to Cambodia. In this situation, the treaties concluded are void ab nitio (invalid from the beginning). This means that the treaty (and the rest) is void without any possibility of separation. Cambodia, the victim state, cannot acquiesce in the maintenance in force of the treaty. Even if Cambodia has acquiesced, as it has been doing, these treaties/agreements are still void. If Cambodia wanted to maintain the status quo, it would have to enter into new treaties on the same terms with Vietnam.
2.6. The UN International Law Commission which drafted this Vienna Convention, gave a clear commentary on this point:
“The Commission did not think that the principle [of acquiescence] should be applicable at all in cases of…coercion of the state itself under Article . The effect and the implication in international relations are of such gravity that the Commission felt that a consent so obtained must be treated as absolutely void in order to ensure that the victim of the coercion should afterwards be in a position freely to determine its future relation with the State which coerced it”: (see Yearbook of the International Law Commission (1966-II, p.268)
2.7. According to Professor Sir Ian Sinclair, who was a member of the UN International Law Commission:
“the implication of the last sentence of this passage is that the state victim [Cambodia] which might wish to benefit, in whole or in part, from the treaty must conclude a new treaty having the same contents as the nullified treaty”: (see Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, (1984) p. 181).
2.8. The International Court of Justice in Icelandic Fisheries Jurisdiction case, (1973), reinforced the above principle,
“under contemporary international law an agreement concluded under the treat or use of force is void”.
Accordingly, I submit for the reasons above that the 1979-1985, and the
1991 Working Arrangement line:
(a) are incompatible with the Paris Peace Accords 1991; and
(b) violate one of the fundamental principles of international law (that treaties are void ab initio if concluded under military aggression), as enshrined in Article 52 of the Vienna Convention on the Law of Treaties.
It is my fervent hope that the Royal Government will confirm the invalidity of the 1979-1985 treaties and the 1991 Working Arrangement and will seek to negotiate more favorable border treaties with Vietnam and other countries.
It is my honor to have the opportunity to explain my views to Your Excellency. As Your Excellency does, I hope for the best future for our motherland, including preserving its territorial integrity.
With the assurance of my highest regard and respect.
. The Royal Palace
. Cabinet of Samdeach Prime Minster
. Chairman of the Fifth Commission on Foreign Affairs, National Assembly.
. Sam Rainsy Party
. FUNCINPEC Party
. Concerned organizations.