HIS MAJESTY
NORODOM SIHANOUK VARMAN
KING OF CAMBODIA
ROYAL PALACE
PHNOM PENH, CAMBODIA.
Your Majesty:
May it please Your Majesty. In writing this letter to Your Majesty, I fully bear in my mind Your Majesty’s constitutional and political restraints on this subject matter, but my sorrow and conscience still compel me to raise my humble concerns with Your Majesty. For this, I beg for Your forgiveness.
After having carefully researched and examined Cambodian history, international law and the conduct of the current Royal Government in relation to Cambodia’s boundary issues, I most humbly wish to submit to Your Majesty my profound concern and raise issues in relation to some aspects of Cambodia’s current border affairs.
1. Land
Borders and the Heng Samrin/Hun Sen--Vietnamese 1979-1985
Treaties.
1.1. After a long campaign of misinformation by the Cambodian People’s Party’s leaders in which they said in effect that these treaties had been nullified, on 13 June 2002, a high representative of the Royal Government, His Excellency Senior Minister Sok An testified to the National Assembly that the treaties, especially the Treaty on Creation of the Historical Waters (1982), Treaty on Principle of Solving Border Issues (1983), and Treaty on Delimitation of Cambodia-Vietnam (1985), are in fact still operative.
1.2. In justifying the retention of these treaties, His Excellency Sok An stated that while he bore in mind the implication of Article 1(1)(d) of the Agreement Concerning the Sovereignty, Independence, Territorial Integrity and inviolability, Neutrality and National Unity of Cambodia (Paris, 23 October 1991), the above treaties do not affect Cambodian sovereignty or territorial integrity, thus, from the Royal Government’s view, there is no need or justification to nullify them. He went on to assert that Cambodia lost no land under these treaties and that the Royal Government’s critics are ill-informed.
1.3. It is my humble submission that the Prime Minister’s Representative is incorrect as far as the Cambodia-Vietnam territorial integrity is concerned for the following reasons.
1.4 During the reign of Your Majesty’s Royal Government between 1955-1969, according to a CIA Memorandum dated 27 February 1968 entitled “Cambodia’s Boundary Problems” (now declassified), Your Majesty’s claim on the areas of dispute included several square kilometres in Cambodia’s northeastern salient, several square kilometres west of Duc Co along Route 19, several square kilometres west of Chu Pong Mountains in the upper Ia Drang region, about 33.6 square kilometres southwest of Dac Lap, a few square kilometres northwest of Bu Dop, and a small area northwest of Loc Ninh and also a larger area along the northern frontier of Tay Ninh province.
1.5. According to a State Department Report in 1992, cited in an article of the Far Eastern Economic Review (3 Sept. 1992) and the American Journal of International Law (vol. 87 1993), these “disputed” areas were awarded to Vietnam under the 1985 delimitation treaty.
1.6 It is my understanding that in 1967 both North Vietnam and its branch, the National Liberation Front of South Vietnam recognized Your Majesty’s claims because these areas were “within the limits of Cambodia’s present frontiers”. These were the words Your Majesty expressly and clearly wanted all states, including the North Vietnam, to declare. These were the words used, according to the National Liberation Front of South Vietnam’s Central Committee’s Declaration dated 13 May 1967 and this was confirmed by Letter dated 6 June 1967 of Mr Nguyen Huu Tho, the President of the Presidium of the Central Committee to Your Majesty, in the Vietnamese declaration.
1.7. The Declaration also recognized the so-called 1939 Brevie Line as maritime border of the two states, which Your Majesty had wished to be recognized as the maritime border since 1964.
1.8 The discrepancies can also be observed between the statements to the National Assembly of 13 June 2002 of H.E. Sok An and that of H.E. Var Kim Hong, the chief negotiator and Director of the National Authority on the Border Affairs.
1.9. According to H.E. Var Kim Hong, if compared to the colonial Service Geographique de l’Indochine scale map 1/100,000 and the 1985 delimitation treaty, Cambodia loses 9,000 hectares; and compared to U.S Army Mapping Service scale map 1/50,000 with the 1985 Treaty, Cambodia would lose about 7,900 hectares. This aspect was re-confirmed to me by H.E Var Kim Hong by telephone on 30 August 2002 at 4:30 p.m. (Sydney time).
1.10. H.E Var Kim Hong suggested to me that the US-made 1/50,000 map, which in the late 1960s, Your Majesty instructed H.E. Huot Sambath to reject as incorrect, affected Cambodia’s proclaimed size. Under the 1985 treaty, a new boundary line was drawn on this particular map. The reason for the drawing of this new line, according to H.E Var Kim Hong, was because 1/50,000 map, although has co-ordinates, is blank on the borderline. According the 1985 treaty, this map was given the same value as the 1/100,000 map.
1.11. Another point, which H.E Var Kim Hong stated as the only remaining point of seven contested issues with Vietnam on the land frontiers, of H.E. Var Kim Hong’s statement to the National Assembly, is the fact that Vietnam does not recognize and accept the borderline along Hoyt River as amended by Your Majesty in 1964. The 1985 treaty adopted the old borderline as drawn on the 1/100,000 map. Regarding this point, it is my understanding that in 1964,Your Majesty, adopted the line given by the Decree 31 July 1914, which had amended the borderline along the Hoyt River bringing it to conform with the way the line along which the Dam River had been drawn. It is also my understanding that the 1967 Declaration by the Vietnamese generally recognized Cambodia’s frontiers, including this line change.
1.12 The 1985 Treaty is a treaty on the delimitation of the Cambodia-Vietnam boundary. In fact, at this time, Cambodia needed neither a delimitation nor a demarcation treaty with Vietnam because Cambodia already had had land delimitation and demarcation decrees and a convention on these two issues. The relevant decrees and convention are the Boundary Decision dated 9 July 1870, Convention dated 15 July 1873, Decree on the Creation Can-Le District dated 26 July 1893, the Royal Ordinance Regarding Boundary Changes between Cambodia and Vietnam dated 12 March 1914, Decree Governing the Boundary Between Vietnam and Cambodia dated 31 July 1914, Decree Reinstating the Province of Darlac in Annam, dated 30 April 1929, and Decree dated 1935. Whichever the latest have the binding effect today.
1.13. Under the doctrine of the international law, Uti Possidetis (states come to independence with the same borders that they had when they were administrative units or divisions with a territory or territories of one colonial power), the above colonial decrees and convention have a binding effect on Cambodia and Vietnam in relation to the borderline, although their effect can be changed by a new treaty or declaration, unilateral or mutual.
1.14. Therefore, it is my humble submission that Cambodia did not need the 1985 treaty because it affected what was agreed up to 1985.
1.15. A serious disadvantages to Cambodia of the 1985 Treaty is the invalidation of Vietnam’s 1967 Declaration. I was greatly surprised by H.E Var Kim Hong’s statement to me on 30 August 2002 to the effect that because 1967 declaration was a unilateral act it does not have binding effect on Vietnam. He also seemed unaware of the beneficial implication to Cambodia of the 1967 Declaration.
1.16. As far as precedents of international law are concerned, H.E Var Kim Hong’s statement on this particular aspect is incorrect. Of precedental value is the case Norway vs. Denmark (P.C.I.J. Rep. Series A/B No.52 (1933)), related to a dispute between those two countries over Greenland. In this case, Denmark made a claim on Eastern Greenland and negotiations ensued. In the course of further conversations with the Danish Foreign Minister, Norway Foreign Minister on 22 July 1919, declared that “the Norwegian Government would not make any claim difficulty” concerning the Danish claim. This declaration was not in a signed or written form. The Permanent Court of International Justice ruled that the Norwegian Minister’s declaration was binding and thus Norway was refrained from contesting Danish territorial claim. Key to this finding was that the minister made the declaration in his official capacity and it was made in response to/at the request of the Danish, who then relied upon it.
1.17 Following the logic in the Norway case, Vietnam was bound by its 1967 declaration and Cambodia should have been able to retain territories Your Majesty had wanted. The 1985 Treaty changed all this.
1.18 On this principle, if Cambodia abided by its obligation under Article 1(1)(d) of the Paris Agreement 1991, i.e. to undertake to terminate this treaty (this also includes all 1979-1985 Treaties, for that matter), Cambodia would have had no problem protecting itself under the international law.
1.19 Apparently, unlike the Democratic Kampuchea, the Royal Government has not used the 1967 Declaration as a basis for its terrestrial and maritime border negotiations with Vietnam.
2. Maritime borders and the Joint Historical
Water Agreement 1982.
2.1.1
On 13 June 2002, H.E. Sok An made a misleading statement to
the National Assembly that Cambodia did not lose Koh Tral (Phu Quoc island) and
that this 1982 Agreement does not in any way violate Cambodian territorial
integrity, although he submitted that, like Your Majesty’s stance, the Royal
Government wants the Brevie Line as the maritime border.
2.1.2 Clearly, accepting the Brevie Line means loss of the Koh Tral. For H.E Sok An to Say that Cambodia did not lose Koh Tral is obviously misleading. There is no indication that Cambodia made any mention of Cambodia’s 1972 claim in its negotiations with Vietnam, while Vietnam basically has adhered to the South Vietnam’s 9-March, 14-April-1960 and June-1971 unilateral and unjustifiable claim except in relation to Koh Paulo Wai.
2.1.3 In addition, Vietnam’s declaration of baseline of 12 May 1977 and implemented by statement of 12 November 1982 is also a violation of Cambodia’s sea, especially in regard to the segment of straight baseline linking the Tho Chu (Panjang) Archipelago to the Paulo Wai island.
2.3 As Your Majesty is aware, Vietnam officially or currently does not recognize
Brevie Line as a boundary between the two states, although Vietnam previously did so, as I mentioned above, when it made its declaration in 1967.
2.4.1 Like it did when it negotiated with Democratic Kampuchea, Vietnam demands
that the equidistance principle be used to delimit the maritime boundary. If this argument is successful, Cambodia will lose an additional area of sea and seabed measuring at least 860 square nautical miles from the Brevie Line to the north.
2.4.2 Under the 1982 Agreement, Cambodia basically awarded a de facto joint
ownership of 30,000 square kilometer while awaiting the conclusion of a new final agreement. I say “de facto joint ownership” because under this Treaty, Vietnam was awarded fishing rights and the right to conduct joint armed patrols of Cambodia’s waters.
2.4.3 Based on the Your Majesty’s proclaimed border line in 1964 and Vietnam’s 1967declaration, this treaty clearly violates Cambodia’s territorial integrity.
2.4.4 Communist Vietnam’s continued demand for the last 27 years that the outdated equidistance principle be used to solve and construct a maritime border line is historically and legally baseless. It is legally baseless because the Brevie Line is a colonial administrative decision/division therefore the doctrine of Uti Possidetis applies in the same way as it does on the terrestrial boundary: (Guinea-Bissau v. Senegal vol. 83 I.L.R 1 1989; El Savador/Hondura case I.C.J Rep. 1992, p.58). It is historically baseless because under Article 113 of our Constitution or Kram Srok 1615 (Grand era 1693) Koh Tral, which was administered under then Khmer Banteay-Meas province whose governor was Chaupnhea Youthea Thireach.
2.8 In
fact, a demand by Cambodia for Vietnam’s de-colonization of Kampuchea
Krom and Koh Tral would have been a more legitimate and legal basis as de-
colonization is compulsory under international law and the UN Charter of which Vietnam is a party.
2.9.1 There is no sign that Vietnam will concede to the legal reality i.e Brevie Line be recognized nor is there evidence to suggest that the Royal Government has
put forward this legal argument (Uti Possidetis). As a result, the “dispute” will continue, thus so will the de facto joint ownership under 1982 treaty.
3. Border disputes with Thailand.
3.1 Thailand, as Your Majesty is aware, never recognized the 1904 and 1907 Frenco-Siamese treaties and the so-called Dangrek map. Even during Your Majesty’s first rule, Thailand demanded that Cambodia ignore these treaties and requested that a new borders treaty be concluded.
3.2 H.E.Var Kim Hong informed the National Assembly on 13 June 2002 (and again personally confirmed to me during our recent conversation) that in 2000, Thailand and Cambodia entered into an agreement to the effect that Thailand recognized the Frenco-Siamese treaties and on 15 June 2000, a Memorandum of Understanding on the Survey and Demarcation of Land Boundary was signed by H.E Var Kim Hong and H.E Sukhumbhand Parigatr, the Chairman of Cambodia-Thai Joint Committee on Boundary.
3.3 Under international law, there was no need to have another agreement for Thailand to recognize the frontiers as stipulated in the French-Siamese treaties. In addition, the Cambodian public has not been informed of the nature of consideration, if any, exchanged between the two parties.
3.4 Because of a concern that territory that rightfully belongs to Cambodia is being given away without serious consideration of the existing borders under international law and without open and honest discussion with the people, a public debate is needed before this new agreement receives royal ratification. To this end, I humbly beg Your Majesty to intervene so that the agreement is released for public debate.
4.1 A disturbing revelation during my telephone conversation with H.E. Var Kim Hong, was the fact that he did not seem to know about the existence of the Protocol annexed to the Frenco-Siamese Boundary Treaty dated 23 March 1907 and its implications.
4.2 Clause One of the annexed Protocol clearly states that:
“the boundary between French
Indo-China and Siam leave the sea at a point situated the highest point of Koh Kut
island”.
4.3 This Clause is and should have formed the basis of Cambodia’s maritime border. It is my understanding that Cambodia’s 1972 unilateral proclamation might have been based on this Protocol. This Proclamation, according to my information, reinforced Your Majesty’s earlier intent.
4.4 In addition to its straight baseline claim on 12 June 1970, in June 1973, Thailand made a unilateral and unjustifiable claim which laid claim to some of the sea and seabed subject to Cambodia’s 1972 legitimate claim thus creating an overlapping area measuring about 26,000 square kilometers.
4.5 Under the 1907 Treaty and international law in general, Cambodia has a better case than Thailand (whose claim in my view has no justification at all), even using the dated equidistance principle. Media reports have suggested Cambodia and have reached joint exploration development on this overlapped area. Cambodia again appears to have conceded (or ceded) territory perhaps of the ignorance of some of the members of the Royal Government in relation to the existence of 1907 Protocol.
4.6 Because the new Cambodia-Thailand agreement concluded in 2000 deals exclusively with the land border, there is a strong possibility that its effect is a move away from the operation of Clause One of 1907 treaty’s Protocol giving way to Thailand to claim, as it always has meant to do, i.e. the 1907 treaty has nothing the maritime border.
As I have summated above, the 1979-1985 agreements with Vietnam do violate Cambodia’s sovereignty and territorial integrity and Cambodia would be at advantages if it nullifies these agreements.
May Your Majesty and Her Majesty accept my most respectful and affectionate sentiments.
Bora Touch
Lawyer