Cambodia: Change and Continuity in Contemporary Politics 9781138723672, 9781315192918

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Cambodia

The International Library of Social Change in Asia Pacific Series Editor: John Clammer Titles in the Series Singapore Garry Rodan Cambodia Sorpong Peou People’s Republic of China, Volumes I & II Frank N. Pieke Hong Kong Benjamin K.P. Leung Political Change in East Asia: An Introduction, Volumes I & II Peter W. Preston

Cambodia Change and Continuity in Contemporary Politics

Edited by

Sorpong Peou Sophia University, Japan

First published 2001 by Ashgate Publishing Reissued 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © Sorpong Peou 2001. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Publisher's Note The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original copies may be apparent. Disclaimer The publisher has made every effort to trace copyright holders and welcomes correspondence from those they have been unable to contact. A Library of Congress record exists under LC control number: 00032270 ISBN 13: 978-1-138-72367-2 (hbk) ISBN 13: 978-1-315-19291-8 (ebk)

Contents Acknowledgements Series Preface Introduction

PART I

PERSPECTIVES ON VIOLENCE AND WAR: THE ELUSIVE SEARCH FOR PEACE?

1 Steven R. Ratner (1993), ‘The Cambodia Settlement Agreements’, American Journal o f International Law, 87, pp. 1—41. 2 Michael Wesley (1995), ‘The Cambodian Waltz: The Khmer Rouge and United Nations Intervention’, Terrorism and Political Violence, 7, pp. 60-81. 3 Abdulgaffar Peang-Meth (1991), ‘Understanding the Khmer: Sociological-Cultural Observations’, Asian Survey, 31, pp. 442-55. 4 Pierre Lizée (1993), ‘The Challenge of Conflict Resolution in Cambodia’, Canadian Defence Quarterly, 23, pp. 35-8,40,42,44. 5 Sorpong Peou (1998), ‘Hun Sen’s Pre-emptive Coup: Causes and Consequences’, Southeast Asian Affairs, pp. 86-102.

PART II

6 7 8 9 10

vii ix xi

3 45 67 81 89

PERSPECTIVES ON LEGAL DEVELOPMENT: THE CONSTITUTION, HUMAN RIGHTS ISSUES AND THE PURSUIT OF JUSTICE

Stephen P. Marks (1994), ‘The New Cambodian Constitution: From Civil War to a Fragile Democracy’, Columbia Human Rights Law Review, 26, pp. 45-110. Hurst Hannum (1989), ‘International Law and Cambodian Genocide: The Sounds of Silence’, Human Rights Quarterly, 11, pp. 82-138. Stephen P. Marks (1994), ‘Forgetting “the Policies and Practices of the Past”: Impunity in Cambodia’, Fletcher Forum of World Affairs, 18, pp. 17-43. Terence Duffy (1994), ‘Toward a Culture of Human Rights in Cambodia’, Human Rights Quarterly, 16, pp. 82-104. Kassie Neou and Jeffrey C. Gallup (1997), ‘Teaching Human Rights in Cambodia’, Journal of Democracy, 8, pp. 154-64.

109 175 233 261 285

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PART III

11 12 13 14 15

PERSPECTIVES ON POLITICAL DEVELOPMENT: TOWARDS A TRIUMPH OF LIBERAL DEMOCRACY?

Joakim Öjendal (1996), ‘Democracy Lost? The Fate of the U.N.-implanted Democracy in Cambodia’, Contemporary Southeast Asia , 18, pp. 193-218. Abdulgaffar Peang-Meth (1997), ‘Understanding Cambodia’s Political Developments’, Contemporary Southeast Asia, 19, pp. 286-308. Julio A. Jeldres (1996), ‘Cambodia’s Fading Hopes’, Journal o f Democracy, 7, pp. 148-57. L. Shelton Woods (1997), ‘The Myth of Cambodia’s Recovery’, Contemporary Southeast Asia, 18, pp. 417-29. Sorpong Peou (1998), ‘The Cambodian Elections of 1998 and Beyond: Democracy in the Making?’, Contemporary Southeast Asia, 20, pp. 279-97.

PART IV

299 325 349 359 373

PERSPECTIVES ON GENDER AND RACIAL RELATIONS: TOWARDS SOCIAL HARMONY AND PEACE?

16 Judy L. Ledgerwood (1995), ‘Khmer Kinship: The Matriliny/Matriarchy Myth’, Journal o f Anthropological Research, 51, pp. 247-61. 395 17 Judy L. Ledgerwood (1996), ‘Politics and Gender: Negotiating Conceptions of the Ideal Woman in Present Day Cambodia’, Asia Pacific Viewpoint, 37, pp. 139—52. 411 18 Kyoko Kusakabe, Wang Yunxian and Govind Kelkar (1995), ‘Women and Land Rights in Cambodia’, Economic and Political Weekly, 28 October, pp. 87-92. 425 19 Chou Meng Tarr (1992), ‘The Vietnamese Minority in Cambodia’, Race & Class, 34, pp. 33-47. 431 20 Ramses Amer (1994), ‘The Ethnic Vietnamese in Cambodia: A Minority at Risk?’, Contemporary Southeast Asia, 16, pp. 210-38. 447

PART V

PERSPECTIVES ON ECONOMIC DEVELOPMENT: TOWARDS PROSPERITY?

21

Mya Than (1992), ‘Rehabilitation and Economic Reconstruction in Cambodia’, Contemporary Southeast Asia, 14, pp. 269-86. 22 Sophal Ear (1997), ‘Cambodia and the “Washington Consensus” ’, Crossroads: An Interdisciplinary Journal of Southeast Asian Studies, 11, pp. 73-97. 23 Stephen J. Duggan (1996), ‘Education, Teacher Training and Prospects for Economic Recovery in Cambodia’, Comparative Education, 32, pp. 361—75. 24 Ronald Bruce St John (1995), ‘The Political Economy of the Royal Government of Cambodia’, Contemporary Southeast Asia, 17, pp. 265-81. 25 Ozay Mehmet (1997), ‘Development in a Wartom Society: What Next in Cambodia?’, Third World Quarterly, 18, pp. 673-86. Name Index

479 497 523 539 557

571

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. American Society of International Law for the essay: Steven R. Ratner (1993), ‘The Cambodia Settlement Agreements’, American Journal o f International Law, 87, pp. 1-41. Copyright © 1993 The American Society of International Law. Reproduced with permission from American Journal o f International Law. Baxter Publishing Co. for the essay: Pierre Lizée (1993), ‘The Challenge of Conflict Resolution in Cambodia’, Canadian Defence Quarterley, 23, pp. 35-8,40,42,44. Blackwell Publishers Limited for the essay: Judy L. Ledgerwood (1996), ‘Politics and Gender: Negotiating Conceptions of the Ideal Woman in Present Day Cambodia’, Asia Pacific Viewpoint, 37, pp. 139-52. Copyright © 1996 Victoria University of Wellington. Columbia Human Rights Law Review for the essay: Stephen P. Marks (1994), ‘The New Cambodian Constitution: From Civil War to a Fragile Democracy’, Columbia Human Rights Law Review, 26, pp. 45-110. Reprinted by permission of the Columbia Human Rights Law Review. Economic and Political Weekly for the essay: Kyoko Kusakabe, Wang Yunxian and Govind Kelkar (1995), ‘Women and Land Rights in Cambodia’, Economic and Political Weekly, 28 October, pp. 87-92. The Fletcher Forum of World Affairs for the essay: Stephen P. Marks (1994), ‘Forgetting “the Policies and Practices of the Past”: Impunity in Cambodia’, Fletcher Forum o f World Affairs, 18, pp. 17-43. Reprinted, courtesy of the Fletcher Forum of World Affairs and written by Stephen P. Marks. Frank Cass & Co. Ltd for the essay: Michael Wesley (1995), ‘The Cambodian Waltz: The Khmer Rouge and United Nations Intervention’, Terrorism and Political Violence, 7, pp. 6081. Institute of Race Relations for the essay: Chou Meng Tarr (1992), ‘The Vietnamese Minority in Cambodia’, Race & Class, 34, pp. 33-47. Institute of Southeast Asian Studies for the essays: Sorpong Peou (1998), ‘Hun Sen’s Pre­ emptive Coup: Causes and Consequences’, Southeast Asian Affairs, pp. 86-102; Sorpong Peou (1998), ‘The Cambodian Elections of 1998 and Beyond: Democracy in the Making?’, Contemporary Southeast Asia, 20, pp. 279-97; Joakim Öjendal (1996), ‘Democracy Lost?

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The Fate of the U.N.-implanted Democracy in Cambodia’, Contemporary Southeast Asia, 18, pp. 193-218; Abdulgaffar Peang-Meth (1997), ‘Understanding Cambodia’s Political Developments’, Contemporary Southeast Asia, 19, pp. 286-308; L. Shelton Woods (1997), ‘The Myth of Cambodia’s Recovery’, Contemporary Southeast Asia, 18, pp. 417-29; Ramses Amer (1994), ‘The Ethnic Vietnamese in Cambodia: A Minority at Risk?’, Contemporary Southeast Asia, 16, pp. 210-38; Mya Than (1992), ‘Rehabilitation and Economic Reconstruction in Cambodia’, Contemporary Southeast Asia, 14, pp. 269-86; Ronald Bruce St John (1995), ‘The Political Economy of the Royal Government of Cambodia’, Contemporary Southeast Asia, 17, pp. 265-81. Reproduced here with the kind permission of the publisher, Institute of Southeast Asian Studies, Singapore. Johns Hopkins University Press for the essays: Hurst Hannum (1989), ‘International Law and Cambodian Genocide: The Sounds of Silence’, Human Rights Quarterly, 11, pp. 82-138. Copyright © 1989 Johns Hopkins University Press; Terence Duffy (1994), ‘Toward a Culture of Human Rights in Cambodia’, Human Rights Quarterly, 16, pp. 82-104. Copyright © 1994 Johns Hopkins University Press; Kassie Neou and Jeffrey C. Gallup (1997), ‘Teaching Human Rights in Cambodia’, Journal of Democracy, 8, pp. 154-64. Copyright © 1997 Johns Hopkins University Press and National Endowment for Democracy; Julio A. Jeldres (1996), ‘Cambodia’s Fading Hopes’, Journal of Democracy, 7, pp. 148-57. Copyright © 1996 Johns Hopkins University Press and National Endowment for Democracy. Journal of Anthropological Research for the essay: Judy L. Ledgerwood (1995), ‘Khmer Kinship: The Matriliny/Matriarchy Myth’, Journal of Anthropological Research, 51, pp. 247-61. Southeast Asia Publications for the essay: Sophal Ear (1997), ‘Cambodia and the “Washington Consensus” ’, Crossroads: An Interdisciplinary Journal of Southeast Asian Studies, 11, pp. 7397. Copyright © 1997 Center for Southeast Asian Studies, Northeastern Illinois University. Taylor & Francis Ltd for the essay: Stephen J. Duggan (1996), ‘Education, Teacher Training and Prospects for Economic Recovery in Cambodia’, Comparative Education, 32, pp. 361-75. Copyright © 1996 Carfax Publishing Limited. University of California Press for the essay: Abdulgaffar Peang-Meth (1991), ‘Understanding the Khmer: Sociological-Cultural Observations’, Asian Survey, 31, pp. 442-55. Copyright © 1991 The Regents of the University of California. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Asia Pacific has emerged in the last two decades as one of the most significant regions of the world economically, politically and in terms of its social and cultural diversity, creativity and global impact. For these reasons, as well as for the intrinsic interest of its languages and civilizations, the Asia Pacific region has attracted enormous interest from managers, strategic studies specialists, and scholars of comparative sociology, religion, political institutions and change, cultural studies and post-colonial studies, and from tourists, development specialists and those concerned with the management of social change and ethnic diversity. In particular it is a region experiencing and initiating vast social and cultural changes, many of which will prove to be of great significance for the world in general. The International Library o f Social Change in Asia Pacific represents an important publishing initiative designed to bring together in easily accessible and carefully selected form the most significant published journal essays on contemporary Asia and of processes of social change throughout the Asia Pacific region. The series makes available to researchers, teachers, students, journalists and both area specialists and the reader needing up to date comparative material, an extensive range of essays which are indispensable for obtaining an overview of the fundamental social institutions and social processes in this vital region of the world. The literature on Asia Pacific has proliferated with the expanding interest in the region and the number of journals providing coverage of the area has correspondingly expanded. This makes it increasingly difficult for students, scholars and practitioners to keep abreast with the materials which are essential to an accurate understanding of this complex and pivotal zone. The International Library addresses this by making available for research and teaching the key essays from specialist journals worldwide, including those from within the region which are often less accessible internationally. Each volume is edited by a recognized authority who has selected a group of the best journal articles in their field of special competence and provided an informative introduction giving an overview of the country or field and the relevance of the articles chosen. The original pagination is retained for ease of reference and citation. The essays are selected on the basis both of their empirical coverage of countries and trends, and for their reflection of theoretical developments in the social sciences so that each volume represents in-depth analysis, breadth of coverage and the nature of current thinking and contemporary methods of social and cultural analysis. It is hoped that the result will be an accessible, up to date and authoritative introduction and will make available to scholars, diplomats, students and business people the latest scholarship on a dynamic and rapidly changing sector of the global society and economy. JOHN CLAMMER Series Editor Sophia University, Tokyo

Introduction Cambodia has confounded scholars and observers of its politics. As David Chandler, the pre­ eminent Cambodia historian, has said, ‘Cambodia has a large capacity to ambush prophets and take historians by surprise’ (Chandler, 1994, p.89). In his view, ‘the weight of the past is such that “tragedy” seems to be one of the more descriptive words, and most enduring explanations, for the ongoing process of Cambodian history’ (Chandler, 1994, p.90). It is not easy to explain the tragedy of Cambodian history, much less predict what will happen next for this mysterious Southeast Asian country and former French colony. Cambodia thus calls for academic humility. But what is the Cambodian tragedy? The recent tragedy of Cambodian history has included two major wars: from 1970 to 1975, and from 1978 to 1991. The 1970-75 war began immediately after General Lon Nol and other rightists had overthrown Prince Norodom Sihanouk in a bloodless coup. The new regime (known as the Khmer Republic) fought with a revolutionary guerrilla force known as the Khmer Rouge and lost. From 1975 to 1978, the Khmer Rouge regime, led by the infamous Prime Minister Pol Pot, conducted a reign of terror, bringing death to more than a million Cambodians and leaving the country in utter ruins. Pol Pot was driven out of power in late 1978 when more than 100000 Vietnamese troops invaded Cambodia, giving birth to the People’s Republic of Kampuchea (PRK), and occupied the country until 1989. Until late 1991 the PRK (renamed the State of Cambodia or SOC in 1989) fought with three major resistance forces along the Thai-Cambodian border. The resistance forces were Funcinpec (National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia, founded by Prince Norodom Sihanouk), the KPNLF (Khmer People’s National Liberation Front) led by former Prime Minister, Son Sann, and the armed remnants of the Khmer Rouge. Although the exact number of human casualties during the 1970-91 period may never be known, it is estimated that about 2.5 million Cambodians may have perished, from a population that was only about 7 million in 1975. On 23 October 1991 the four warring Cambodian factions - Funcinpec, the Khmer Rouge, the KPNLF and the PRK/SOC - agreed to end their armed conflict. They signed a comprehensive peace accord (known as the Paris Agreements) and then invited the United Nations to help organize an election in their country. The UN sent in an unprecedented mission with a multidimensional mandate (known as the United Nations Transitional Authority in Cambodia or UNTAC). Equipped with more than 25 000 personnel in seven ‘components’ (Peace-keeping, Civilian Police, Repatriation, Human Rights, Information/Education, Civil Administration and Electoral) UNTAC was tasked with nothing less than the creation of a neutral political environment for free and fair elections. Despite many serious obstacles, UNTAC managed to hold an election. The mission cost about US$2 billion.1 The Paris Agreements were not completely fulfilled, however. The UN intervention was generally viewed as a ‘qualified success’. The disarmament process failed. The Khmer Rouge pulled out of the electoral process and continued to wage war after the election in May 1993. Although Funcinpec won the elections, it was forced to share power with the SOC’s political

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party, the Cambodian People’s Party or CPP. Prince Norodom Ranariddh of Funcinpec (one of Sihanouk’s sons) became First Prime Minister and Hun Sen of the CPP assumed the position of Second Prime Minister. The coalition ran into trouble after 1996 and ended badly when Hun Sen staged a coup against his co-premier in early July 1997. Cambodia was again sent into a tailspin. After some forceful international intervention, however, the country managed to hold an election on 26 July 1998. This time, it was the CPP that won. After a few tumultuous months arising from the opposition parties’ allegations that the CPP had reaped its victory through political intimidation and massive fraud, Ranariddh and Hun Sen agreed to form another coalition government. This time, Hun Sen became the sole Prime Minister. Ranariddh emerged as Chairman of the National Assembly. How long the new government will last is anyone’s guess. This volume provides a selection of journal essays on Cambodia. It is divided into five Parts, examining the five most critical issues concerning change and continuity in contemporary Cambodia. It should be stated here that important issues related to urbanization and agricultural development are not included, simply because no journal essays on these subjects exist. For rural development, one may wish to consult the work by Judy Ledgerwood (Ledgerwood, 1998). The book’s five Parts include: violence, war and peace; the Constitution, human rights and the pursuit of justice; democratic development and dilemmas; gender and ethnic relations; and economic development and problems. These five themes should be instructive to scholars and policy-makers dealing with what has been termed the ‘triple transition’ - from armed conflict to end of violent hostility, from political authoritarianism to liberal democracy, and from socialist economic systems to market-driven or capitalist ones. Part I contains critical perspectives on war and peace in Cambodia. The existing scholarly literature pays almost exclusive attention to this most pressing issue. Since the 1970s the country has captured international attention because of its frequent tragedies: the civil war, the Khmer Rouge reign of terror, the Vietnamese invasion and occupation, the massive UN intervention and the 1997 coup. The five critical perspectives represented in the selected writings - legalism, ideological fanaticism, culturalism, institutionalism and structuralism - offer their insights on the daunting obstacles to the complex transition from war to peace. Part II addresses critical perspectives on legal development, human rights, the law and the pursuit of justice. Human rights abuses are a constant thorn in the Cambodian side. Scholars may disagree on the extent to which the violation of human rights has been reduced, but the question of how to improve the country’s human rights situation continues to concern observers of Cambodian politics. The pursuit of justice continues. The alleged war crimes of the Khmer Rouge, which took place in the 1975-78 period, still command international attention. In fact, the United Nations has been conducting investigations into the alleged ‘genocide’. Troubling questions remain. Do the atrocities committed by the Khmer Rouge leadership constitute ‘genocide’? What should be done about it? Is punitive action in accordance with the international law the real solution to peace? Can education help promote respect for human rights? What else can be done? The problems and prospects for democratization in Cambodia are discussed in the essays in Part III. The debate on stability versus democracy continues to be relevant in the Cambodian context. International efforts to keep Cambodia from falling back to violence- and war-prone political authoritarianism are not hailed as good news. Observers of Cambodian politics are still pessimistic. The essays here are selected to throw further light on obstacles to democratization.

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Part IV contains essays related to gender and ethnic relations in Cambodia. In recent years efforts have been made to raise the status of women. The government recognizes that women are a ‘key to national reconstruction’ (Secretariat of State, 1995) because they constitute 52 per cent of the population and 53 per cent of the labour force. Women’s rights do not appear to be well respected, however. Not only do they still receive one-third less pay than men, but they also face a gender gap in education and experience shortcomings in health services. Another major, unmitigated social problem is the uneasy racial relationship between the dominant ethnic Khmer and other minorities. Because relations between Khmer and ethnic Vietnamese remain most problematic and worrisome, two essays have been selected to help shed some light on their relationship. But we cannot fully understand the limited social change in Cambodia unless we have a better grasp of its persistent economic problems. Reform efforts have been made. Much foreign aid (more than US$2 billion) poured into Cambodia during the 1992-97 period. Unfortunately, the country is still deeply mired in poverty. In 1998 the country still remained one of the world’s poorest countries, with resources diminishing rapidly in the midst of a fast-growing population. Although economic development has become one of the most dominant issues - with the international community actively involved in the process of economic reconstruction through a heavy dose of foreign aid - very little has been written on the subject. As noted earlier, scholars have paid more attention to the political and security issues. Part V brings together five essays to help explain the problems still facing Cambodia as it searches for a better future. A word of clarification on my choice of essays for this collection: the selection is not based on literary merit, but rather on the perspectives they represent with regard to change and continuity in contemporary Cambodian society. Although some are more theoretically informed and analytically sound than others, they all examine issues of great importance in different ways. These essays help us better understand the complexities of socioeconomic and politicomilitary developments in today’s Cambodia. I make no attempt to argue which perspectives are better or more convincing, however. Readers must judge for themselves as to which perspectives best explain the country’s existing problems. Based on these 25 essays, it is not unreasonable to conclude that change for the better has been extremely slow in coming. The future of Cambodia remains overshadowed by a myriad complex problems that can be overcome only if Cambodian leaders and their people recognize the grave danger of unresolved destructive political factionalism, authoritarian behaviour, human rights abuses, unequal social relations and economic underdevelopment.

Perspectives on Violence and War: The Elusive Search for Peace? Part I contains five essays explaining the problems of war and prospects for peace in Cambodia. It is appropriate to start with the work by Steven R. Ratner, a lawyer, formerly with the US Department of State, who provides a legal analysis of the Paris Agreements in Chapter 1. The Agreements, which call for UNTAC to oversee all aspects of the settlement, are based on well accepted principles of international law, but also break new ground regarding such concepts as recognition of states and their sovereignty. While recognizing that the Agreements do not contain any enforcement powers, the author still argues that ‘they embody Cambodia’s only hope’ (p.43).

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For others, the hope for peace was dashed when UNTAC failed to fully accomplish its multiple tasks in Cambodia. In Chapter 2, Australian scholar Michael Wesley focuses his attention on the Khmer Rouge’s nature, history and ideology, and argues that these variables ‘conditioned’ the faction’s uncooperative responses and tactics towards UNTAC. Its acceptance of the Paris Agreements, he argues, was part of a ‘tactical change’ with the aim of manipulating the peace process, rather than evidence of learning to coexist peacefully with other political factions. Other scholars give more attention to Cambodia’s political culture and traditional values. London-based Professor Michael Leifer argues that ‘genuine compromise and power-sharing among adversaries have not been part of the political tradition and experience of Indochina’. He adds, ‘Power has been treated as a possession to be enjoyed on an exclusive basis, not as a commodity which might be shared with adversaries’ (Leifer, 1992, p. 140). In Chapter 3, Cambodian-born American political scientist Abdulgaffar Peang-Meth of the University of Guam offers some of his sociological-cultural observations, with insight into the Khmer’s ‘steadfast resistance to compromise’. It is interesting to note his conclusion: ‘Centuries of philosophical-religious influences on Khmer culture and society, and the generalized Khmer characteristics and predispositions that have evolved, have contributed much to the present Khmer tragedy.’Moreover, ‘[t]hey make peace, stability, and democracy very difficult to achieve’ (p.80). In Chapter 4, in his essay explaining the challenge of conflict resolution in Cambodia, Canadian political scientist Pierre Lizée of Brock University evaluates the innovative UN concept of peace-building. Any attempt at transcending personal politics ‘which does not permit the institutionalization of violence’, may prove futile, he argues. Cambodia’s non-Western socio­ cultural institutions and values cannot be readily transformed by outside intervention seeking to plant the seed of peace (see also Lizée, 1999). Sorpong Peou of the Institute of Southeast Asian Studies (Singapore) examines, in Chapter 5, the causes and consequences of the coup staged in July 1997. The essay discusses the persistence of factionalism and violence, even five years after the UN-organized election in 1993. Taking a structural approach, he argues that Cambodia’s hegemonic power structures constitute the main reason why compromise for peace in this country is extremely difficult to achieve (see also Peou, 2000).

Perspectives on Legal Development: The Constitution, Human Rights Issues and the Pursuit of Justice Part II begins with the new democratic constitution, recognized as the supreme law of the land, and then moves on to look at the various perspectives on human rights development and requirements for peace, stability and democracy. After the 1993 election, the National Assembly adopted a liberal constitution that closely reflected the Cambodian factions’ commitments envisioned in the Paris Agreements. It is helpful to begin with an analysis on the new constitution. In Chapter 6, Stephen Marks (former head of human rights education, training and information for UNTAC) analyses the new constitution, which ‘reaffirms most human rights and calls for some basic institutions necessary for a liberal democracy respectful of human rights’. Although the constitution ‘is not much better than

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previous communist or republican versions on which it is largely based’, power ‘is beginning to be exercised more broadly and certain checks are being placed on the arbitrary exercise of power’ (p. 174). Despite the existence of a liberal democratic constitution, the rule of law has yet to prevail over the rule of might. Violation of human rights continues to be a major threat to human dignity and security. International observers have become increasingly concerned about the Cambodian ‘culture of impunity’. One issue that keeps arising is whether the Pol Pot leadership committed genocide under international law. Cambodia historians such as Michael Vickery (1984, p. 144) and David Chandler argue in their earlier work that what happened at the time does not technically constitute genocide. According to Chandler, ‘[much] of what has been written about Pol Pot since his time in power has been reckless and intemperate. This is unsurprising in view of the impact of the revolution; but calling him a “moon-faced monster,” a “genocidal maniac,” or “worse than Hitler” . . . has no explanatory power’ (Chandler, 1992, p.4). Other scholars, such as Ben Kieman (1996), have, in fact, accused the Pol Pot leadership of having committed genocide. Historian Steve Heder argues that Marxism and Communism ‘were at the root’ of Khmer Rouge genocide (Heder, 1997). Sorpong Peou contends that whether or not what happened during that period constitutes genocide is not the most important question. The root causes of the Khmer Rouge ‘killing fields’ must also be placed in the structural context (Peou, 1997a).2 In Chapter 7, Hurst Hannum, who teaches international law at the Fletcher School of Law and Diplomacy, argues that the Khmer Rouge committed genocide. Considerations of Realpolitik drove the international community into making no attempt to condemn the Khmer Rouge’s violations of customary international law. Examining the feasibility of bringing an application to the International Court of Justice (under the terms of Article IX of the Genocide Convention or Article 36 of the Statute of the Court), he draws the conclusion that such an application would be both legally feasible and politically desirable. Stephen Marks’ discussion of the Cambodian culture of impunity for crimes of the past follows. Touching on the legal issue of individual, as well as collective, responsibility and accountability, he sees a paradox: a solid evidentiary and legal base for prosecution, but weak social support for such prosecution. Five factors have hindered prosecutions for genocide or crimes against humanity. For a few observers, a foundation for a culture of human rights has been slowly laid in Cambodia. In Chapter 9, Terence Duffy of the University of Ulster (Northern Ireland), for instance, sees hopes rooted in patient and careful work aimed at developing a civil society founded on democracy and human rights. His cautious optimism lies in the possibility of vital transformation of the Cambodian people’s mentality and the tremendous potential for human rights education, reminding Cambodians of future generations about the past ‘killing fields’. There are other ways to promote respect for human rights, as well. In his reflective essay with Jeffrey C. Gallup (Chapter 10), Kassie Neou (founder and director of the Cambodian Institute of Human Rights) discusses the importance of teaching human rights in Cambodia. Part of their argument is that Cambodian culture is neither anti-democratic nor antithetical to human rights. Although the moral precepts of Cambodian Buddhism ‘speak of obligations rather than rights’, they contain ‘close parallels to international human rights standards’ (p.290). Based on his personal life experience and conviction, Neou believes that education in the area of human rights can help build civil society and promote good governance. His philosophical

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approach to such education ‘is one of political neutrality, a nonconfrontational stance, and use of Cambodian traditions, rather than just modern Western concepts’ (p.289).

Perspectives on Political Development: Towards a Triumph of Liberal Democracy? Whether Cambodia is on its way towards liberal democracy is highly debatable. The five essays in Part III are either cautiously optimistic or simply pessimistic, and look at obstacles to political liberalization: anti-democratic culture, policy errors or strategic miscalculations, external apathy and Cambodia’s power structure. In Chapter 11, Joakim Öjendal of Göteborg University (Sweden) discusses the role of ‘Asian values’ in shaping Cambodia’s political system and the relationship between economic development and political change. Rebutting the conventional thesis that economic development precedes democracy, he concludes that the two are interdependent variables and must go together. In Chapter 12, Abdulgaffar Peang-Meth advances another argument regarding Cambodia’s bleak future and the endless cycle of destruction and despair. The three factors seen to impede the process of democratization include the imbalance between advocacy for democratic freedoms/ civil rights and sympathy with the need for societal order, the socio-psychological-cultural traits of the Khmer, and the general weariness of the world community with Cambodian problems. Another pessimist, Julio A. Jeldres (the Chilean-born Australian official biographer of King Norodom Sihanouk), sees Cambodia’s hopes for democracy as ‘fading’. His essay (Chapter 13) recognizes ‘signs that an independent democratic culture is growing’. He also points to the pitfalls of the power-sharing arrangement between Funcinpec and the CPP, however, with the latter being ‘tightly disciplined along classic Stalinist lines’ (p.350). If this analysis proves prophetic, the new Funcinpec-CPP marriage of convenience may not last very long. American historian Shelton Woods of Boise State University also discusses the myth of national recovery in Chapter 14. Rather than looking at the role of Stalinist ideology as the obstacle to democracy, he examines the country’s political structure. As he puts it: ‘In the Cambodian Government, the executive branch has a disproportionate amount of power. Legislative members are stooges for their particular leader and party . . . It is the judicial arm of the . . . Government, however, that is the most chaotic’ (p.366). The return to political authoritarianism is systemically driven. ‘Hun Sen has changed’, from a friend of the common people to a national leader surrounded by ‘thousands of soldiers’ (p.369). In Chapter 15, Sorpong Peou again takes a structural approach, with the aim of explaining the problem of democratization and predicting future political liberalization. Viewing Cambodia as an extremely weak state dominated by a vulnerable hegemonic party (the CPP), the author argues that the elections of 1998 were freer and fairer than expected, but were neither free nor fair in absolute terms. Still vulnerable to domestic challenges, Hun Sen may be tempted to tighten his grip on power to secure his political survival. If he relentlessly pursues this course of action, however, it is likely to backfire and lead to his downfall.

Perspectives on Gender and Racial Relations: Towards Social Harmony and Peace? The role of women in Cambodian society and politics and ethnic relations are discussed in

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Part IV. The following essays seek to answer the question of whether Cambodian society has evolved towards greater social equality and harmony. What is the current status of women? Has gender inequality been reduced? How are minorities treated? Is there a trend towards racial harmony? In Chapter 16, American anthropologist Judy Ledgerwood of Northern Illinois University seeks to expose the matriliny/matriarchy myth in academic works. Khmer society was not organized along matrilineal principles. She demonstrates that the patterns evident in Khmer kinship terminology and social relations do not support the claim. Although their actions have social value, women do not currently enjoy ‘high status’ or political power, nor is there evidence that they were powerful - or matriarchal - in the past, as some scholars have previously assumed. In the next essay (Chapter 17), Ledgerwood points to the continuity of unequal gender relations in Cambodian society. She examines the politics of gender by critically interrogating one Cambodian politician’s notion of the ‘ideal woman’ during a campaign speech in the 1993 election. He appealed to both ‘tradition’ and ‘modernity’, but is viewed as manipulating ‘gender symbolism, playing on multiple ambiguous notions of femaleness to prove his own powerful status and to comment on the current state of the Khmer social and moral order’ (pp.411-12). Despite the drastic changes of the last 20 years, he still ‘linked his own power and that of other men to their control over women’s sexuality’ (p.412). Although women have been recognized as major contributors to the national economy, their economic status is believed to remain inferior. After the process of economic liberalization that began in 1989, women have become landless as a result of land speculation. In Chapter 18, Kyoko Kusakabe, Wang Yunxian and Govind Kelkar argue that, although men and women secured equal titles to land under the liberalization process, the number of land disputes increased dramatically. Their essay explains the effect of this phenomenon on women’s social position on gender relations in Cambodia. They conclude their discussion with some thoughts on two major problems regarding women’s land rights. Chapters 19 and 20 look at ethnic relations and the problems that still confront Cambodia in the search for more peaceful racial coexistence. The most problematic relationship is between the Khmer and ethnic Vietnamese. Others, however, are more cautious about future developments in Vietnamese-Khmer relations. Jennifer S. Berman contends that the ethnic Vietnamese’s legal status in Cambodia is ‘precarious at best’. While the Cambodian National Assembly has passed an immigration law that could be used to deport ethnic Vietnamese residing in Cambodia, it has failed to pass a nationality law to clarify their status. The author further argues that the Cambodian legislature is required by national and international legal norms to pass a non-discriminatory nationality law now in place in other Southeast Asian countries (Berman, 1996). Although the National Assembly adopted the law on nationality on 20 August 1996, the legal status of ethnic minorities remains far from clear: the law puts emphasis on Khmer rather than Cambodian citizenship (the Khmer being the country’s predominant ethnic group). In her essay on ‘The Vietnamese Minority in Cambodia’ (Chapter 19), Chou Meng Tarr of the University of Technology (Australia), a Chinese-Cambodian ‘expelled’by the Khmer Rouge in 1975, argues that the ethnic Vietnamese ‘have been the target of forms of racism initiated by the Cambodian state’. Still, she argues, ‘there is clearly much less overt anti-Vietnamese sentiment than in the past’ (p.439). Although ‘racism has not disappeared from Cambodian society’, people in Cambodia ‘have learned important lessons from history’. In her view, ‘more

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than two decades of war and revolution... have undermined to a large extent the racist ideology that some Cambodian intellectuals and the state gave encouragement to during the 1960s and 1970s’ (p.443). Ramses Amer of Uppsala University (Sweden) argues, in Chapter 20, that ‘the repeated politically motivated attacks on ethnic Vietnamese in recent years present a real threat to the Vietnamese community at large’ (p.443). What is interesting about this study is that antiVietnamese sentiments in Cambodia are seen as both domestically and externally driven. The author offers a useful prescription for the Cambodian authorities in dealing with the ethnic Vietnamese - that is, they ‘must take an unequivocal stand in favour of accepting the Vietnamese community as a part of Cambodian society’ (p.469). While the prescription may be a good start for the Cambodian authorities to promote better racial harmony, it is unclear as to how it can be effectively implemented, given the Cambodian state’s structural fragility and persistent economic problems.

Perspectives on Economic Development: Towards Prosperity? Is economic development in Cambodia possible? This is a difficult question, as the country still struggles to free itself from the powerful grip of poverty. According to the global Human Development Report 1997, Cambodia’s rank was raised from 153 to 140, just below that of India and Pakistan (UNDP, 1997, p.v). One of the main challenges to economic development is in the agricultural sector. Although little has been written on this subject in recent years, the few scholars who have touched on it warn that failure to promote agricultural productivity has serious political implications (Raymond, 1996). Increasing agricultural productivity requires more than just hard work. Policy must not be driven by rule from above. Forced collectivization failed miserably and led the way to decollectivization. One valuable lesson that can be drawn from the Cambodian experience is that peasants are more rational actors pursuing their own ends. As Viviane Frings puts it: ‘Cambodian peasants have always been individualistic’ (Frings, 1994, p.62). The five chapters that focus on the problems and prospects of the economy offer different explanations. They are not equally pessimistic. Liberal scholars tend to see communist ideology and legacies as impediments to development. Generally, however, they put their faith in the process of political and economic reform compatible with the neoliberal economic agenda. Those who adopt cultural and structural perspectives paint a grimmer picture of modernization efforts. Chapter 21, by My a Than (an economist at the Institute of Southeast Asian Studies in Singapore), provides a sketchy but useful background to Cambodia’s early blueprints and attempts at economic rehabilitation and reconstruction, which was thinly laid out in the Paris Agreement. Based on the assumption that rehabilitation and economic reconstruction depends on peace and political stability, the author forcefully argues that these conditions are difficult to achieve. The Khmer Rouge is to blame for its unchanged ideology based on ‘collectivization, autarky, strong nationalism and an agrarian society’ (p.491). Cambodia’s capacity to absorb foreign aid is quite limited; however, he further contends that, ‘[in] the ultimate analysis, the success of the programmes will be dependent on the determination and perseverance of Cambodians’ (p.491).

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In Chapter 22 Sophal Ear (a Cambodian-born American political economist and consultant for the World Bank) examines ten aspects of Cambodia’s domestic economic reform policies during the 1993-95 period in order to shed light on its potential for economic development. This note of optimism is partly based on the economic successes in countries in Latin America and the Asia Pacific during the early 1980s. Cambodia’s structural adjustment efforts (in the ‘Washington Consensus’ context) are also reviewed. Overall, despite persistent structural problems standing in the way of national recovery, the neoliberal economic agenda (via Cambodia’s re-entry into the global economy) is viewed as largely positive. For another cautiously optimistic perspective, the work by Naranhkiri Tith is worth reading (Tith, 1998). While economic development based on the will and reform policy is possible, other scholars are more cautious. Obstacles to national recovery are both complex and daunting. In Chapter 23 Stephen J. Duggan of Victoria University (Australia) addresses the relationship between education/teacher training and prospects for economic recovery in Cambodia. Examining the assumption that, for Cambodia to develop its economy it must enhance its absorptive capacity, Duggan uses historical evidence to show that a strengthening of the country’s skill base through investments in education may not lead to sustainable development. Without an allied strengthening of the labour market, ‘extravagances in the education sector . .. contributed to civil war and a holocaust. . . ’ (p.535). In Chapter 24 Ronald Bruce St John (an independent scholar specializing in the political economy of developing countries) adopts a political culture perspective to explain the difficulties of implementing economic policies in Cambodia. While recognizing ‘excellent progress’ in recent years, based on heavy dependence on foreign aid, he sees no sustained growth. The dominant reason for this failure lies in Cambodia’s anti-democratic culture, which ‘remains a major obstacle to sustained economic reform and development’. In his view, ‘[the] problem is so acute as to threaten the entire reform process’ (p.552). Finally Ozay Mehmet of Carleton University (Canada) asks what may happen next to Cambodia (Chapter 25). Taking a structural approach, the author recognizes the primacy of internal determinants - the country’s deep-rooted political, cultural and historical problems. Economic injustice, social inequalities and obsolete feudal structures - these are the root causes of the tragedy that ‘are yet to be remedied’ (p.568). Despite the reform efforts based on a technically sound economic plan drafted by donors, the Cambodian politicians, bureaucrats and military (the ‘rent-seeking gatekeepers’ of Cambodia) are ‘too selfish and insensitive to the poverty of masses’. They are ‘consummate rentiers living off aid inflows ostensibly designed as development assistance, while the donors, for their own reasons, keep pledging more’. While they and the Sino-Khmer-dominated commercial sector enjoy prosperity and luxury, the ruling elite are ‘oblivious to mass poverty all around them’, and Cambodia ‘slides back towards the past’ (p.568).

Conclusion The 25 essays selected for this volume offer critical perspectives that examine change and continuity in contemporary Cambodian society. Although they are not equally theoretically rigorous, these essays were selected with the aim of stimulating further research and debate on the issues raised in this volume.

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Despite active intervention from the international community in the last eight years (at a cost of about US$4 billion), Cambodia still seems unable to get out of harm’s way. The socalled ‘triple transition’- from war to peace, from political authoritarianism to liberal democracy, and from a centrally planned economy to a market-driven one - is far from consolidated.

Notes 1 For works on UNTAC, see Peou (1997b); Doyle et al. (1997); Selochan and Thayer (1996); Doyle (1995); Heininger (1994); Smith (1994). 2 For a detailed account of Western responses to human rights abuses during the Khmer Rouge era, see Metz (1996).

References Berman, Jennifer S. (1996), ‘No Place Like Home: Anti-Vietnamese Discrimination and Nationality in Cambodia’, California Law Review, 84 (1), January, pp. 817-74. Chandler, David (1992), Brother Number One: A Political Biography o f Pol Pot, Boulder, CO: Westview Press. Chandler, David (1994), ‘The Tragedy of Cambodian History Revisited’, SAIS Review, Summer-Fall, pp. 79-90. Doyle, Michael W. (1995), UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate, Boulder, CO: Lynne Rienner. Doyle, Michael W. et al. (eds) (1997), Keeping the Peace: Multidimensional UN Operations in Cambodia and El Salvador, New York: Cambridge University Press. Frings, Viviane (1994), ‘Cambodia After Decollectivization (1989-1992)’, Journal o f Contemporary Asia, 24 (1), pp. 49-66. Heder, Steve (1997), ‘Racism, Marxism, Labelling, and Genocide in Ben Kieman’s The Pol Pot Regime', South East Asia Research, 5 (2), pp. 101-53. Heininger, Janet E. (1994), Peacekeeping in Transition: The United Nations in Cambodia, New York: Twentieth Century Fund Press. Kieman, Ben (1996), The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-1979, New Haven, CT: Yale University Press. Ledgerwood, Judy (1998), ‘Rural Development in Cambodia: The View from the Village’, in Frederick Z. Brown and David G. Timberman (eds), Cambodia and the International Community: The Quest fo r Peace, Development, and Democracy, Singapore: Asia Society and Institute of Southeast Asian Studies. Leifer, Michael (1992), ‘Power Sharing and Peacemaking in Cambodia?’, SAIS Review, 12 (1), W interSpring, pp. 139-53. Lizée, Pierre (1999), Peace, Power, and Resistance: The Emerging Global Security Order, the UN, and the Failure o f Peace-Building in Cambodia, London and New York: Macmillan and St Martin’s Press. Metzl, Jamie Frederic (1996), Western Responses to Human Rights Abuses in Cambodia, 1975-80: New York: St Martin’s Press. Peou, Sorpong (1997a), Holocaust and Genocide Studies, 11 (3), Winter, pp. 413-25. Peou, Sorpong (1997b), Conflict Neutralization in the Cambodia War: From Battlefield to Ballot-box, Kuala Lumpur and New York: Oxford University Press. Peou, Sorpong (2000), Intervention and Change in Cambodia: Toward Democracy?, New York: St Martin’s Press, Singapore: Institute of Southeast Asian Studies.

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Raymond, Chad (1996), ‘Political Implications of Stagnant Agricultural Productivity’, Journal of Contemporary, 26 (3), pp. 366-79. Secretariat of State for Women’s Affairs (1995), Women: Key to National Reconstruction, Phnom Penh: Secretariat of State for Women’s Affairs, March. Selochan, Viberto and Thayer, Carlyle A. (eds) (1996), Bringing Democracy to Cambodia, Canberra: Australian Defence Studies Centre, Australian Defence Force Academy. Smith, Hugh (1994), International Peace Keeping: Building on the Cambodian Experience, Canberra: Australian Defence Studies Centre, Australian Defence Force Academy. Tith, Naranhkiri (1998), ‘The Challenge of Sustainable Economic Growth and Development’, in Frederick Z. Brown and David G. Timberman (eds), Cambodia and the International Community: The Questfor Peace, Development, and Democracy, Singapore: Asia Society and Institute of Southeast Asian Studies. United Nations Development Programme (UNDP) (1997), Cambodia Human Development Report 1997, Phnom Penh, November. Vickery, Michael (1984), Cambodia 1975-1982, Boston, MA: South End Press.

Part I Perspectives on Violence and War: The Elusive Search for Peace?

[1] TH E CAMBODIA SETTLEMENT AGREEMENTS By Steven R. Ratner* On O ctober 23, 1991, representatives o f nineteen states participating in the Paris Conference on Cambodia signed a set o f accords aimed at ending the twenty-year-old conflict in that country.1 The solemn ceremony at the Kleber Center in Paris marked the conclusion o f over three years o f intensive negotia­ tions at a variety of levels, including interfactional, regional and international, to end one of the world’s most tragic regional disputes. It also signaled the begin­ ning of an unprecedented role for the United Nations in the resolution o f such conflicts. The long, sad history of the Cambodian conflict required any comprehensive settlement to address numerous elements: a civil war among four factions, each o f which had taken a turn at governing the country since its independence from France; invasion by a neighboring state seeking regional hegemony; external assist­ ance to the factions; support of the belligerents by the major powers; a history of gross violations of human rights; a vast refugee problem; and a devastated econ­ omy requiring massive reconstruction. The settlement agreements confront these problems through reliance on, and reaffirmation of, existing norms o f interna­ tional law and through the creation of new regimes and institutions that could form im portant precedents for future conflicts. Established concepts such as neu­ trality proved critical in serving as the legal bases for certain aspects o f the settle­ ment; but the agreements chart new waters in fashioning a legal framework for the enhanced United Nations role in implementing the settlement. This article presents a legal analysis o f the Paris agreements by examining them from four perspectives. First, it explicates the agreements to convey their struc­ ture and content. Because the accords are lengthy, and at times opaque, red u n ­ dant or apparently unexceptionable, a distillation for those not familiar with the Cambodian peace process is required. Historical and negotiating background is offered where needed to reveal the underlying issues addressed in the texts. Sec­ ond, the legal obligations in the agreements are interpreted to give a practical sense of the parties’ duties where the texts do not make them clear. The extent to which the signatories must alter their conduct to fulfill their new international commitments is indicated in this context. Third, I identify areas where the accords * International Affairs Fellow, Council on Foreign Relations, and Attomey-Adviser, Office o f the Legal Adviser, U.S. Department o f State. The author served as a member o f the U.S. delegation to the Paris Conference on Cambodia and the negotiations on Cambodia among the five permanent members o f the Security Council. The views expressed herein are those o f the author and are not necessarily those o f the United States Government. The author thanks David A. Jones, Jr., Esq., for comments on earlier drafts. 1 For the texts, see Letter dated 30 October 1991 from the Permanent Representatives o f France and Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A /4 6 /6 0 8 - S / 23177, Annex (1991), reprinted in 31 ILM 180 (1992). The signatory states to the Paris accords are Australia, Brunei, Cambodia, Canada, China, France, India, Indonesia, Japan, Laos, Malaysia, the Philippines, Singapore, the USSR, the United Kingdom, the United States, Vietnam and Yugoslavia. In this article, “Cambodia” is used rather than “ Kampuchea” when referring generically to the country. Although “ Kampuchea” is based on the correct local pronunciation, whereas “Cambodia” derives from the French word “Cambodge,” “Cambodia” is now generally accepted for international usage. “ Khmer” and “Cambodian” continue to be used as adjectives. 1

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rely upon precedents in earlier arrangements to settle regional disputes and thus contribute to the corpus of legal agreements for this purpose. These precedents include both norms of customary international law and practical mechanisms for creating peace on the ground. Fourth, the article discusses those aspects o f the Paris agreements whose legal bases transcend traditional conceptions in interna­ tional law or involve innovative undertakings by the signatory states. The Cambo­ dian accords suggest, for example, new dimensions for recognition, sovereignty and emerging human rights norms. In part I, I review the essential elements of the Cambodian conflict, the nego­ tiating process that culminated in the Paris texts, and the basic structure of the accords. Parts II, III and IV contain analysis o f each o f the three main texts signed in Paris— two legal agreements and a political declaration— from the p er­ spectives noted above. In part V, I summarize implementation o f the agreement to date and, in part VI, conclude with some observations on the Cambodian peace process and the accords as models for handling other disputes. I. H i s t o r i c a l B a c k g r o u n d

The Paris accords of 1991 represent the latest and most ambitious attem pt to end a decades-old conflict rooted in events within and outside Cambodia.2 Cam­ bodia’s history since World War II has been marked by a series o f domestic crises, as well as involvement in confrontations outside its borders. From 1941 to 1970, Cambodia was ruled by Norodom Sihanouk, the country’s hereditary king, ini­ tially under French and Japanese rule, and after 1953 as an independent state. Cambodia’s link with the future of postwar Indochina and legal accords related to that region was evidenced at the 1954 Geneva Conference on Indochina. Al­ though primarily devoted to the French-Vietnamese conflict, the conference also produced an agreement between the Royal Khmer Government and Vietnamesesupported resistance forces that was aimed at ending Cambodia’s internal con­ flict,3 and a unilateral statement by Cambodia regarding its future status.4 Two statements by France5 and the conference’s final declaration promised an end to foreign interference in Indochina.6 However, neither the Geneva accords nor 2 The literature on Cambodian history has grown significantly in recent years. For the most authori­ tative account to date in English, see D avid P. C h a n d le r , A H is to r y of Cambodia (2d ed. 1992). Other useful works include Ben K iernan, H ow P o l P o t Came t o P ow er (1985); F e d e r a l R e sea rch D ivision, L ibrary of C ongress, Cambodia: A C o u n tr y S tu d y (Russell R. Ross ed., 1990) [herein­ after Cambodia: A C o u n try Study]; and sources cited infra note 7. s Agreement on the Cessation o f Hostilities in Cambodia, July 20, 1954, 935 UNTS 185. The main provisions called for a cease-fire; withdrawal o f French and other foreign forces; demobilization o f resistance forces; a ban on the entry o f foreign troops, bases or military assistance; release o f prison­ ers o f war and civilian detainees; and creation o f an international commission to supervise implemen­ tation o f the accord. 4 Declaration by the Royal Government o f Cambodia, July 20, 1954, 935 UNTS 99, 9 9 -1 0 1 . Cam­ bodia asserted that it would not follow any “aggressive policy,” would abstain from military alliances “as long as its security is not threatened,” and would not solicit any foreign military assistance. 5 Declarations by the Government o f the French Republic, July 21, 1954, 935 UNTS 101, 101-03. France stated its readiness to “withdraw its troops from the territory o f Cambodia, Laos and ViêtNam, at the request o f the Governments concerned” and that it would “ proceed from the principle o f respect for the independence and sovereignty, the unity and territorial integrity o f Cambodia, Laos and Viet-Nam.” 6 Geneva Conference on the Problem o f Restoring Peace in Indo-China, Final Declaration, July 21, 1954, 935 UNTS 95. Its most salient feature was an undertaking by the signatories to respect the sovereignty, unity and territorial integrity o f the three Indochinese states and to refrain from interfer­ ence in their internal affairs.

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Sihanouk’s attem pts to insulate Cambodia from neighboring hostilities averted continued domestic instability during the 1960s.

The Period 1970-1989 In March 1970, Sihanouk was overthrown by General Lon Nol, which ushered in authoritarian rule under the name of the Khmer Republic. After five years of struggle between Lon Nol’s forces and the insurgents o f the Communist Party o f Kampuchea (the Khmer Rouge) in alliance with Sihanouk, the Khmer Rouge gained control of Cambodia by April o f 1975. The Khmer Rouge government ruled Cambodia— renaming it Democratic Kampuchea— from April 1975 until its ouster by Vietnamese troops in January 1979. D uring this period, the regime attem pted a total restructuring of Khmer society, including rejection o f all for­ eign influences and heavy reliance on a communal agrarian economy.7 The atroci­ ties committed during this period constitute one o f the worst cases o f state-sponsored killing and other violations o f human rights o f this century and resulted in the loss of a considerable portion of Cambodia’s population to execution, starva­ tion, exhaustion or disease.8 On December 25, 1978, partly in response to cross-border raids by Democratic Kampuchea, Vietnam invaded Cambodia and by January 9, 1979, had seized Phnom Penh. The invasion heralded the fourth government to control Cambodia since independence, that of the Vietnamese-supported regime known until 1989 as the People’s Republic o f Kampuchea (PRK). The Khmer Rouge occupied small rural areas, principally near the Thai-Cambodian border; hundreds o f thousands o f Cambodians fled to Thailand and the West. Despite a call by the United Na­ tions General Assembly for the withdrawal o f all “ foreign forces”9 and its refusal to accept the PRK’s credentials,10 the regime retained control— with the help of Vietnamese forces— of most o f Cambodia throughout the 1980s. The United Nations had devoted little attention to Cambodia during the Khmer Rouge years;11 the Vietnamese invasion, however, spurred the first international

7 Numerous works are devoted to the Khmer Rouge years. The most complete studies in English are Cambodia 1975-1978: Rendezvous with D eath (Karl D. Jackson ed., 1989); N ayan C handa , B rother Enemy : T he War after the War (1986); Elizabeth Becker , W hen the War Was O ver : T he Voices of Cambodia ’s Revolution and I ts People (1986); Michael V ickery , Cambodia : 1 9 7 5 -1 9 8 2 (1984); and François Po nchaud , Cambodia : Y ear Zero (Nancy Amphoux trans., 1977). 8 The figure usually cited for the total number o f deaths due to Khmer Rouge policies is over one million, out o f a population in April 1975 o f 7.3 million. See, e.g., Karl D. Jackson, The Khmer Rouge in Context, in Cambodia 19 7 5 -1 9 7 8 , supra note 7, at 3. The atrocities o f the Khmer Rouge regime are recounted in detail in Kenneth M. Quinn, The Pattern and Scope o f Violence, in id. at 179; and Becker, supra note 7, at 2 1 7 -9 8 . 9 GA Res. 3 4 /2 2 , UN GAOR, 34th Sess., Supp. No. 46, at 16, UN Doc. A /3 4 /4 6 (1979). 10 See UN GAOR, 34th Sess., ls t-3 2 d plen. mtgs., UN Docs. A /3 4 /P V .1 -3 2 , at 5 6 -5 7 (1979) (accepting credentials o f Democratic Kampuchean delegation by 71-35-34 vote); C handa , supra note 7, at 3 7 6 -7 8 . 11 The UN Human Rights Commission’s Sub-Commission on Prevention o f Discrimination and Protection o f Minorities considered Cambodia’s human rights record in 1978. After various states, led by Great Britain, brought the matter to the attention o f the Sub-Commission, the Commission passed information to the Government o f Democratic Kampuchea and requested its views. The Cam­ bodian authorities, in chilling invective, rejected the request. See Q uestion o f the Violations o f H u­ man Rights and Fundamental Freedoms in Any Part o f the World, with Particular Reference to Colonial and Other Dependent Countries and Territories, N ote by the Secretary-General, UN Doc. E /C N .4 /1 2 9 5 -E /C N .4 /S u b .2 /4 1 8 (1978) (containing note o f April 22, 1978, from Ministry o f For­ eign Affairs o f Democratic Kampuchea). The Chairman o f the Sub-Commission then prepared an

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attem pt to resolve the conflict since the Geneva accords. In 1980 the General Assembly decided to convene an international conference “with the aim o f find­ ing a comprehensive political settlement o f the Kampuchean problem .” 12 The International Conference on Kampuchea met in New York from July 13 to 17, 1981. Seventy-nine states attended, including Democratic Kampuchea, but Viet­ nam and other Soviet bloc states boycotted the conference, which focused on the Vietnamese invasion, not the atrocities of the Khmer Rouge. The conference’s Declaration on Kampuchea stressed the need to restore Cambodia’s sovereignty and territorial integrity but scarcely mentioned human rights.13 The conference also created an ad hoc committee to undertake peace efforts on behalf o f the conference;14 the committee met throughout the 1980s but made little progress toward a settlement. The General Assembly kept the situation in Cambodia on its agenda, passing annual resolutions (over the objections of the Soviet bloc) identi­ fying the withdrawal of all foreign forces as the first com ponent o f any lasting peace in Cambodia.15 In addition, the Secretary-General dispatched his Special Representative to the region, who met with regional actors and developed his own framework for a settlement. The peace process that led to the Paris accords started with face-to-face m eet­ ings between Prince Sihanouk and PRK Prime Minister H un Sen in December 1987 and January 1988, followed by the convening by the Government o f Indone­ sia of the Jakarta Informal Meeting (JIM I) on July 25-28, 1988. This meeting marked the first time the parties most directly involved in the conflict— the four Cambodian factions,16 Cambodia’s two Indochinese neighbors, and the six states analysis o f the information. Analysis prepared on behalf o f the Sub-Commission by its Chairman o f materials submitted to it and the Commission on Human Rights under decision 9 (XXXIV) o f the Commission on Human Rights, UN Doc. E /C N .4 /1 3 35 (1979). At its 1979 session, however, the Commission postponed examination o f the report in light o f the ouster o f the Khmer Rouge govern­ ment and thereafter considered only the Vietnamese occupation. 12 GA Res. 3 5 /6 , UN GAOR, 35th Sess., Supp. No. 48, at 13, 14, UN Doc. A /3 5 /4 8 (1980). 13 Declaration on Kampuchea, in R e p o r t o f t h e I n t e r n a t io n a l C o n fe r e n c e o n Kampuchea, New York (1 3 -1 7 J uly 1981), Ann. I, at 7, UN Doc. A /C O N F .109/5, UN Sales No. E .81.I.20 (1981). The 15-point declaration mentions human rights only once, at the end o f a paragraph con­ cerning Cambodia’s right to be free from any external threat or armed aggression. Id.., para. 9. It is significant, however, that neither the declaration nor the General Assembly resolutions call for the restoration o f the Government o f Democratic Kampuchea, which might have been expected in light o f its continued seating at the United Nations. See Kishore Mahbubani, The Kampuchean Problem: A Southeast Asian Perception, 62 F o r e ig n A ff. 407, 418 (1983/84). 14 Res. 1(1), in R eport of the International Conference o n Kampuchea , supra note 13, Ann. II, at 10. 15 See, e.g., GA Res. 4 3 /1 9 , UN GAOR, 43d Sess., Supp. No. 49, at 24, UN Doc. A /4 3 /4 9 (1988). The other elements o f the resolution, later affirmed in the mandate o f the Paris Conference on Cambodia, see infra text at note 21, were (1) the creation o f an interim administering authority; (2) national reconciliation under the leadership o f Prince Sihanouk; (3) “the non-return to the universally condemned policies and practices o f a recent past”; (4) the restoration o f Cambodia’s independence, sovereignty, territorial integrity, neutrality and nonaligned status; (5) the right o f Cambodians to determine their own destiny free o f outside intervention; and (6) “effective guarantees” to ensure that these were achieved. The “non-return” formulation was added to the Assembly’s resolutions in 1988 to meet the concerns o f numerous states that human rights were a fundamental aspect o f any settle­ ment and that the Khmer Rouge should not regain power. The Khmer Rouge is deliberately not mentioned to gain the support o f Democratic Kampuchea’s allies, especially China (which could interpret the wording to apply to PRK human rights abuses), and to avoid discussion o f the legal significance o f the atrocities. See also text at and notes 15 4 -5 8 infra. 16 In addition to the PRK and Democratic Kampuchea, the two non-Communist factions fighting the PRK also attended. These were Prince Sihanouk’s United National Front for an Independent,

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o f the Association of Southeast Asian Nations (ASEAN)17— discussed the elements o f a settlement. The resulting communiqué outlined those areas that all could agree were the key components o f a comprehensive solution.18 The JIM met again on February 19-21, 1989, further elaborating the terms o f a settlem ent.19 The two JIM meetings were designed to start a process of reconciliation between the PRK and the resistance that would be endorsed later at an international con­ ference. The Paris Conference on Cambodia After the success of JIMs I and II in at least bringing the parties together on certain points, the announcem ent by Vietnam in April 1989 that it would with­ draw its troops from Cambodia by the end o f September 1989, and another Sihanouk-H un Sen meeting, the Governments o f France and Indonesia agreed in 1989 to convene a new international conference to reach a comprehensive settle­ ment to the Cambodian conflict, including its internal and international dimen­ sions. The Paris Conference on Cambodia included the four Cambodian factions and all other countries with a strong political or historical interest in the Cambo­ dian conflict: the ASEAN states, the five perm anent members of the UN Security Council, and Vietnam, Laos, Japan, Australia, India and Canada.20 Zimbabwe was invited as the presiding member of the Non-Aligned Movement, and the UN Secretary-General and his Special Representative also attended. The conference held a month-long session from July 30 to August 30, 1989, adopting the following mandate at its ministerial opening: to reach, through a consistent, balanced and co-ordinated approach, a com­ prehensive agreement providing for the internationally supervised with­ drawal of foreign troops, restoring the independence o f Cambodia, guaran­ teeing its sovereignty, territorial integrity and neutrality, prom oting peace and national reconciliation in the country, ensuring self-determination for the Cámbodian people through internationally supervised elections, arrang­ ing for the voluntary return of refugees and displaced persons to their coun­ try and paving the way towards the economic reconstruction o f Cambodia.21 To accomplish these ends, the conference set up five committees: Committee I was responsible for preparing the m andate o f an “ international control mechaNeutral, Peaceful and Cooperative Cambodia and the Khmer People’s National Liberation Front, now led by Son Sann, a prime minister under Sihanouk. They joined the Khmer Rouge in 1982 to form the Coalition Government o f Democratic Kampuchea [hereinafter Coalition Government], nom­ inally led by Prince Sihanouk, members o f which attended UN activities on behalf o f Democratic Kampuchea until 1990. See Cambodia: A C o u n tr y Study, supra note 2, at 196-203; C handa, supra note 7, at 3 8 9 -9 2 . 17 ASEAN, formed pursuant to the Bangkok Declaration o f August 8, 1967, 6 ILM 1233 (1967), comprises Indonesia, Malaysia, the Philippines, Singapore, Thailand and Brunei. 18 See Letter dated 28 July 1988 from the Permanent Representative o f Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A /4 3 /4 9 3 -S /2 0 0 7 1 , Ann. I (1988) (statement by JIM Chairman and Indonesian Foreign Minister Alatas). 19 See Letter dated 22 February 1989 from the Chargé d ’affaires a.i. o f the Permanent Mission o f Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A /4 4 /1 3 8 -S /2 0 4 7 7 & C orr.l, Annex (1989) (consensus statement issued by JIM Chairman Alatas) [hereinafter JIM II State­ ment]. 20 For the prior roles o f India and Canada in Indochinese peace accords, see infra note 105. 21 Organization o f Work, Text Adopted by the C onference at its 4th Plenary Meeting, on 1 August 1989, Paris Conference on Cambodia Document [hereinafter PCC Doc.] C P C /89/4 [hereinafter PCC Mandate].

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nism” to oversee the settlement, including military and electoral aspects; Commit­ tee II was to address the so-called guarantees questions, i.e., legal commitments by the participating states to ensure the durability o f the settlement; Committee III was to consider refugee matters and reconstruction; the Ad Hoc Committee, composed of the four factions, France and Indonesia, was to tackle the most difficult question of establishing “a quadripartite interim authority under the leadership of Prince Norodom Sihanouk with . . . responsibility o f organizing . . . internationally supervised free elections” ;22 and the Co-ordinating Commit­ tee was charged with preparing a draft final docum ent for presentation at the ministerial level. The 1989 session achieved meaningful results in the first three committees. Each submitted a report outlining substantial areas of agreement, together with views of delegations on issues that could not be resolved by consensus.23 The latter included the role of the United Nations in supervising the settlement; the timing and sequence of the cease-fire, withdrawal o f Vietnamese forces and term ination of external assistance; mention of the word “genocide” ; and Vietnamese settlers in Cambodia.24 More important, however, the Ad Hoc Committee made no head­ way in resolving the central question of power sharing among the factions. This failure resulted in the adjournm ent of the first session of the conference on August 30, 1989, without the adoption o f any settlement texts.25 Towards an enhanced UN role: the Permanent-Five process. With the collapse o f the Paris Conference’s first session, participants in the peace process began to contemplate new approaches to overcoming the impasse on power sharing. In response to an Australian proposal for a UN administration o f Cambodia,26 the five permanent members of the Security Council met in January 1990 to discuss an enhanced role for the United Nations prior to elections. Their deliberations throughout 1990 resulted in a series of communiqués that defined the fundam en­ tal components of a solution: the need for a comprehensive settlement; free and 22 Id. at 3. The concept o f a quadripartite interim authority was a compromise that could include an interim coalition government (as sought by the Coalition Government) or an advisory council subordi­ nate to the existing regime (as sought by the PRK). 23 See Letter Dated 24 August 1989 from the Co-Chairmen o f the First Committee to the Co-Chairmen o f the Co-ordination Committee, PCC Doc. C P C /8 9 /C C /l/R e v .l [hereinafter Comm. I Rep.]; Letter Dated 25 August 1989 from the Co-Chairmen o f the Second Committee to the Co-Chairmen o f the Co-ordination Committee, PCC Doc. C P C /8 9 /C C /2 /R ev .l [hereinafter Comm. II Rep.]; Let­ ter Dated 25 August 1989 from the Rapporteur o f the Third Committee to the Co-Chairmen o f the Co-ordination Committee, PCC Doc. C P C /89/C C /3 [hereinafter Comm. I ll Rep.]. Committee I’s report contained a draft mandate for an international control mechanism; Committee II’s report contained a draft legal agreement; and Committee I l l ’s report contained draft statements on recon­ struction and refugees. Committee III Report’s section on reconstruction was the only part o f the three reports adopted by consensus in its entirety. See text at and notes 2 2 4 -2 8 infra. 24 The issues o f genocide and the settlers dominated much o f the 1989 session o f the conference, especially in Committee II. The PRK and its allies emphasized genocide to make clear that the nonre­ turn to power o f the Khmer Rouge was as important as a Vietnamese troop withdrawal; the Coalition Government, and the Khmer Rouge in particular, focused on the settlers as a way o f showing its concerns about Vietnamese hegemony over Cambodia. See Issues Affecting the Question o f United States Relations with Vietnam: Hearing Before the Subcomms. on Asian and Pacific Affairs and on International Economic Policy and Trade o f the House Comm, on Foreign Affairs, 101st Cong., 1st Sess. 120 (1990) (testimony o f Deputy Assistant Secretary o f State David Lambertson) [hereinafter Vietnam Hearing]. 25 See N.Y. T imes, Aug. 31, 1989, at A12. 26 See N.Y. T imes, Dec. 17, 1989, at A15; see also Stephen J. Solarz, Cambodia and the International Community, Foreign A ff ., Spring 1990, at 99, 1 0 7-11.

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fair elections under direct UN adm inistration with participation by all Cambo­ dians; UN verification of the withdrawal o f foreign forces and UN peacekeeping to oversee a cease-fire, cantonment o f forces and term ination o f foreign military assistance; establishment of a “Supreme National Council” to embody Cambo­ dian sovereignty prior to the elections; creation o f a United Nations Transitional Authority in Cambodia; protection of hum an rights; and guarantees for the inde­ pendence, sovereignty, territorial integrity and neutrality o f Cambodia.27 After their meeting o f August 27-28, 1990, the Perm anent Five issued a comprehensive settlement plan, the “ Framework D ocum ent.”28 Diplomatic activity then intensified; on Septem ber 10, the four factions agreed to accept the Framework Document in toto as the basis for a settlem ent and to establish a Supreme National Council (SNC) consisting o f twelve members— six from the State of Cambodia (as the PRK had renam ed itself in 1989) and two from each of the three resistance factions.29 The Security Council endorsed the Framework Document shortly thereafter.80 Elaboration o f the texts into legal agreements commenced in September, and was followed by a meeting o f a work­ ing group o f the Paris Conference (consisting o f the Perm anent Five, the cochairmen o f Committees I, II and III, Indonesia and UN officials), which p re­ pared the body of a settlement agreem ent (annexes were to be drafted later). The Permanent Five and Indonesia, assisted by UN experts, com pleted the drafting and, on November 26, 1990, released a set o f proposed texts.31 These texts proved acceptable to the resistance but raised significant problems for the State o f Cambodia, especially as regards the military arrangem ents and the authority o f the United Nations. The final round o f negotiations began in the summ er o f 1991, after a six-month hiatus while world attention shifted to the Persian G ulf crisis. In meetings in Beijing (at which Prince Sihanouk was elected President o f the SNC), Pattaya (Thailand), New York and Paris, the Perm anent Five, Indonesia and the four factions (attending as the SNC), assisted by UN officials, made revisions to the November 1990 texts to respond to the concerns o f the State o f Cambodia and other members of the Paris Conference.32 These modifications were com pleted

27 See Summary o f Conclusions o f the Meeting o f the Five Permanent Members o f the Security Council on the Cambodian Problem, Paris, 1 5 -1 6 January 1990, reprinted in N.Y. T imes , Jan. 17, 1990, at A6 [hereinafter P -5 Jan. 16 Statement]; Conclusion o f Consultations o f the Five Permanent Members o f the Security Council on Cambodia, New York City (Feb. 13, 1990) [hereinafter P -5 Feb. 13 Statement]; Summary o f Discussions, Paris (Mar. 13, 1990) [hereinafter P -5 Mar. 13 Statement]; Summary o f Conclusions, New York (May 26, 1990); Summary o f Conclusions, Paris (July 17, 1990) (all on file with the author). 28 Statement o f the Five Permanent Members o f the Security Council o f the United Nations on Cambodia, in Letter Dated 30 August 1990 from the Permanent Representatives o f China, France, the Union o f Soviet Socialist Republics, the United Kingdom o f Great Britain and Northern Ireland and the United States o f America to the United Nations Addressed to the Secretary-General, UN Doc. A /4 5 /4 7 2 -S /2 1 6 8 9 , Annex, Appendix (1990) [hereinafter Framework Document]. 29 N.Y. T imes, Sept. 11, 1990, at A3. 30 SC Res. 668, UN SCOR, 45th Sess., Res. 8c Dec. at 28, UN Doc. S /IN F /4 6 (1990). 31 See Letter dated 8 January 1991 from the Permanent Representatives o f France and Indonesia to the United Nations addressed to the Secretary-General, U N Doc. A /4 6 /6 1 -S /2 2 0 5 9 , Ann. II (1991) [hereinafter P -5 Draft]. 32 See, e.g., Communiqué issued on 30 August 1991 by the Co-Chairmen o f the Paris Conference on Cambodia and the five permanent members o f the Security Council, in Letter dated 3 Septem ber 1991 from the Representatives o f China, France, Indonesia, the Union o f Soviet Socialist Republics, the United Kingdom o f Great Britain and Northern Ireland and the United States o f America to the

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by the middle of October, permitting signature at the O ctober 23 ministerial meeting. Structure o f the settlement documents. The Paris Conference concluded four documents: the Final Act of the Paris Conference on Cambodia;33 the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict;34 the Agree­ m ent Concerning the Sovereignty, Independence, Territorial Integrity and Invio­ lability, Neutrality and National Unity of Cambodia;35 and the Declaration on the Rehabilitation and Reconstruction of Cambodia.36 The parties to the Final Act, the two Agreements, and the Declaration are the nineteen states that participated in the conference,37 including Cambodia. The two Agreements have treaty sta­ tus,38 whereas the Declaration on Rehabilitation is not legally binding. The Final Act restates the history of the Paris Conference in general terms, contains several requests by the conference to oth er actors in the international community to take certain measures to foster implementation o f the settlem ent,39 and includes an invitation to states that did not participate in the conference to become party to the two Agreements.40 The parties also undertake to cooperate fully in implementing the settlement and to prom ote and encourage respect for human rights in Cambodia.41 These obligations are included in the two legal Agreements as well.42 II. T h e C o m p r e h e n s iv e S e t t l e m e n t A g r e e m e n t

The Agreement on a Comprehensive Political Settlement o f the Cambodia Conflict is the principal document concluded by the Paris Conference. It contains

United Nations addressed to the Secretary-General, UN Doc. A /4 6 /4 1 8 -S /2 3 0 1 1 (1991) [hereinafter Communiqué]. 33 Oct. 23, 1991, 31 ILM 180 (1992) [hereinafter Final Act]. 34 Oct. 23, 1991, id. at 183 [hereinafter Comprehensive Settlement Agreement]. 35 Oct. 23, 1991, id. at 200 [hereinafter Guarantees Agreement]. 36 Oct. 23, 1991, id. at 203 [hereinafter Declaration]. 37 Yugoslavia replaced Zimbabwe as presiding member o f the Non-Aligned Movement in September 1989 and in that capacity took the seat at the October 1991 m eeting o f the conference formerly occupied by Zimbabwe. 38 Vienna Convention on the Law o f Treaties, May 23, 1969, Arts. 2(l)(a), 26, 1155 UNTS 331, 333, 339, reprinted in 8 ILM 679 (1969). 39 See Final Act, supra note 33, para. 12 (requesting that the UN Secretary-General take appro­ priate steps to allow the Security Council to consider the settlement); para. 13 (asking the Interna­ tional Committee o f the Red Cross to facilitate the release o f prisoners o f war and civilian internees); and para. 15 (urging the international community to contribute to the reconstruction o f Cambodia). 40 As o f October 1992, Portugal had also becom e party to the Agreements. Telephone interview with Permanent Mission o f France to the United Nations (Oct. 15, 1992). 41 Although these two undertakings are phrased as legal obligations, the Final Act should not be considered a legal agreement. The Department o f State does not include it in its most recent list o f international agreements to which the United States is a party. See U.S. D ep ’t of State , T reaties in Force : A L ist of T reaties and O ther I nternational A greements of the U nited States in Force on J anuary 1, 1992, at 296 (1992). Final acts o f international conferences have been given a variety o f legal contents. See, e.g., Geneva Conference on the Problem o f Restoring Peace in IndoChina, supra note 6 (including legal obligations and work o f conference); Third United Nations Conference on the Law o f the Sea, Final Act, Dec. 10, 1982, reprinted in U nited N ations , T he Law of THE S ea 158, UN Sales No. E.83.V.5 (1983) (describing work o f conference and appending resolu­ tions); Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975, 73 D ep ’t St . Bu ll . 323 (1975), 14 ILM 1292 (1975) (nonbinding instrument with certain legal effects). 42 Compare Final Act, supra note 33, para. 12 with Comprehensive Settlement Agreement, supra note 34, Arts. 15(2)(b), 27, 28(1) and Guarantees Agreement, supra note 35, Art. 3(2)(b).

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all the fundamental elements of the settlement, including those elaborated in the Guarantees Agreement and the Reconstruction Declaration. The Agreem ent con­ sists of thirty-two articles in its main text, with annexes on the mandate o f the United Nations Transitional Authority in Cambodia (UNTAC), the military aspects o f the settlement, elections, repatriation of refugees and displaced persons, and constitutional principles. The organization o f the Agreement represents a com­ promise between a proposal (advanced by the Government o f Australia) to in­ clude all the components of the settlement in one text signed by all parties,43 and a plan (advanced by France, the United States and the United Kingdom) for a set o f agreements, some of which would be signed by all the states at the conference and others by groupings thereof (e.g., Cambodia and its neighbors). The discus­ sion below analyzes the Agreement by functional area, rather than on an articleby-article basis. The Crux o f the Deal: The Supreme National Council and UNTAC The two critical, intertwined and unprecedented features o f the Com prehen­ sive Settlement Agreement are the Supreme National Council and the United Nations Transitional Authority in Cambodia. The concept of the SNC originated in the deliberations following the break­ down o f the 1989 session of the Paris Conference, as policy makers in Australia and the United States contemplated the possibility o f a UN adm inistration of Cambodia. A UN Trusteeship of a member state was not permissible u nder Article 78 o f the Charter.44 If the United Nations were to administer Cambodia, under generally accepted interpretations o f the C harter an entity authorized to repre­ sent Cambodia would need to delegate power to the Organization o r otherwise indicate Cambodia’s consent to the operation; or, alternatively, the Security Council would have to approve enforcem ent action under chapter VII to restore international peace and security in Southeast Asia. The latter option, however, never received serious consideration owing to the Council’s unwillingness to im­ pose a large UN presence on Cambodia without any agreem ent by the factions, especially in view of the Council’s reluctance to invoke chapter VII before the Persian Gulf war. In the absence of a single government accepted by all states as politically legiti­ mate and legally able to delegate power,45 the idea em erged o f a Supreme Na­ tional Council that would include representatives from all the factions and serve as a unique and legitimate source of authority. The Perm anent Five raised the 43 See, e.g., A ustl . D ep’t of Foreign A ffairs and T rade , Cambodia : an A ustralian Peace Pro ­ 1 3 5 -4 3 (1990) (document prepared for the Jakarta Informal M eeting o f Feb. 2 6 -2 8 , 1990). 44 Article 78 states: “The trusteeship system shall not apply to territories which have become Members o f the United Nations, relationship among which shall be based on respect for the principle o f sovereign equality.” See also UN C h a r te r Art. 77 (authorizing trusteeships for former League o f Nations mandates, territories separated from enemies as a result o f World War II, and territories whose administering power voluntarily places them under trusteeship); L ela n d M. G o o d r ic h , Edvard Ham bro 8c A nne P. Sim ons, T h e C h a r te r o f t h e U n ite d N a tio n s: C om m entary a n d D ocum ents 487 (3d rev. ed. 1969). 45 During the 1980s, approximately 30 countries, including the Soviet bloc states and approxi­ mately 20 other Third World states, recognized and maintained diplomatic relations with the PRK. Almost 80 countries recognized Democratic Kampuchea as the government o f Cambodia, although it maintained active diplomatic relations with only about 10. See Cambodia: A C o u n tr y Study, supra note 2, at 222, 224. Other countries, including the United States, did not regard the PRK, Demo­ cratic Kampuchea or the Coalition Government as the government o f Cambodia. posal

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possibility of an SNC after their first meeting on Cambodia and elaborated its core functions at their third meeting and in the Framework Document.46 After the issuance of the Framework Document, which called for the establishment of an SNC, the factions created it at their September 1990 meeting. In view o f the seemingly irreconcilable differences between the PRK and the Coalition Govern­ ment, the SNC’s primary purpose, as envisioned in the Framework Document and the Agreement, was to delegate the authority needed to implement the settlement to UNTAC. The Agreement defines the SNC as the “unique legitimate body and source of authority in which, throughout the transitional period, the sovereignty, independ­ ence and unity of Cambodia are enshrined” ; it further states that the SNC will represent Cambodia externally during the transitional period (i.e., prior to instal­ lation of the newly elected government), including by occupying Cambodia’s seat at the United Nations.47 Last, the SNC “delegates to the United Nations all powers necessary to ensure the implementation o f this A greem ent.”48 The Agree­ ment thus creates a progression of legal predicates to enable the SNC to delegate authority to the United Nations. It first grants the SNC a special legitimacy as embodying Cambodia’s sovereignty; from that premise flows the SNC’s com pe­ tence to represent Cambodia externally; and from that basis the SNC derives its authority to agree to a legal (vis-à-vis the other Paris Conference states) grant of powers to the United Nations. The Agreement also contains the essential political acknowledgment by all parties to the conflict, within and outside Cambodia, that the SNC can delegate governmental functions, political and military, to UNTAC. Although establishing the requisite foundation for a delegation o f authority, the Agreement, in characterizing the SNC as the entity that “enshrines Cambo­ dian sovereignty,” highlights the uncertain legal status o f the Council. It is not the government of Cambodia. During the negotiations, the two regimes composed o f the four factions— the State of Cambodia and the National Government o f Cam­ bodia49— each continued to assert that it was the government o f Cambodia.50 The Five and Australia did not expect, nor did the factions set up, the SNC to u n d er­ take the governing functions contemplated for an interim government at the 1989 session. Moreover, other states have not regarded it as the government o f Cambodia. After the signing of the Paris agreements, when states began to ac­ credit diplomats to the SNC, most based accreditation on its responsibility under the Agreement to represent Cambodia in its foreign affairs.51 The SNC is thus sui generis as a m atter of international law. It is best regarded as an entity created by the Cambodian factions and later given a special status— a type of international recognition— by the community o f nations, in both a Secu­ rity Council resolution and the Comprehensive Settlement Agreement. Resolu­ tion 668, prepared by the same states that had crafted the Framework Document, 46 P -5 Jan. 16 Statement, supra note 27, at 2 (“repository o f Cambodian sovereignty”); P -5 Mar. 13 Statement, supra note 27, at 3 (“unique legitimate body and source o f authority” (emphasis added)); Framework Document, supra note 28, paras. 1 -9 (same). 47 Comprehensive Settlement Agreement, supra note 34, Arts. 3, 5. 48 Id., Art. 6. 49 The Coalition Government o f Democratic Kampuchea, see supra note 16, began referring to itself in 1990 as the National Government o f Cambodia. 50 See, e.g., Hun Sen on SNC Agreement, Beijing Trip, Foreign B roadcast I nformation S ervice [FBIS], E. A sia Daily R ep ., July 10, 1991, at 5 0 -5 1 (noting that “the SNC is not a government” and that “the two existing governments will remain unchanged”). 51 See, e.g., U.S., Cambodia Begin New Relationship, Wash . Post , Nov. 12, 1991, at A15.

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welcomed the creation of the SNC in Septem ber 1990, calling it the “ unique legitimate body and source o f authority in which, during the transitional period, the independence, national sovereignty and unity o f Cambodia is em bodied.” More important, the Council noted “ that the Supreme National Council will therefore represent Cambodia externally and it is to designate its representatives to occupy the seat of Cambodia at the United Nations.”52 The Comprehensive Settlement Agreement affirms this com petence for the SNC, committing the Paris Conference states and the factions to accept both the SNC’s authority to delegate powers to the United Nations and the delegation itself. This acceptance by the international community does n ot conform with tradi­ tional notions o f recognition of governments based on effective control and pros­ pect of permanence.53 Both the Security Council and the conference states ac­ knowledged the authority of an entity that no party had asserted was the govern­ ment of Cambodia— and that lacked the attributes o f a government— to represent Cambodia in its relations with other states and international organiza­ tions.54 Moreover, whereas the recognition o f states and governments is best regarded as declaratory only,55 the recognition o f the SNC was clearly constitu­ tive. It maintains its unique position only by virtue o f Resolution 668, the Settle­ ment Agreement, and its acceptance by states. Given the SNC’s nongovernm ental nature, its creation outside the framework o f the peace process would have re­ sembled the tree that falls in the forest with nobody present to hear the crash. The other substantial innovation o f the Settlement Agreem ent is the establish­ ment o f UNTAC, whose mandate pervades the Agreem ent and stands at the core o f the settlement. Building on the Australian initiative, the Perm anent Five first called publicly for UNTAC’s creation after their February 1990 discussions, and elaborated upon its m andate in their March statement and the Framework Document.56 Three sets o f provisions in the Agreement concern UNTAC. First, the signator­ ies invite the Security Council to create UNTAC “with civilian and military com po­ nents under the direct responsibility o f the Secretary-General o f the United Na52 SC Res. 668, supra note 30. For background regarding the seating o f Cambodia at the United Nations after the invasion by Vietnam, see supra note 16. The delegation o f the National Government o f Cambodia did not appear at the General Assembly session in 1990, and Cambodia’s seat remained vacant. The SNC delegation assumed Cambodia’s seat at the 1991 session. 55 See, e.g., Nkambo Mugerwa, Subjects o f International Law, in Manual of Public I nternational Law 247, 2 7 0 -7 2 (Max Sarensen ed., 1968); H ersch Lauterpacht , R ecognition in Interna ­ tional Law 9 8 -1 0 2 (1947). 54 The Security Council’s acceptance o f the SNC’s assumption o f Cambodia’s seat at the United Nations contrasts in two respects with the UN response to prior disputes over representation. First, those instances involved seating o f delegates o f entities that claimed to be, and were regarded by certain other states as, the government o f the state. See Rosalyn H iggins , T he D evelopment of I nternational Law through the Political O rgans of the U nited N ations 1 5 2 -6 6 (1963) (dis­ cussing early disputes over representation). Second, the leading role o f the Security Council in this process is unusual. See id. The Security Council did not state the legal basis o f Resolution 668 in its text. The operative phrase concerning the SNC’s representation o f Cambodia begins with the word “notes” and is not a decision o f the Council with which member states must comply under Article 25 o f the Charter. 55 Tinoco Concessions (UK v. Costa Rica), 1 R.I.A.A. 369, 3 7 6 -8 4 (1923) (Taft, arb.); see also Ian B rownlie, Principles of Public I nternational Law 9 2 -9 3 (3d ed. 1979) (declaratory view repre­ sents customary international law). 56 See P -5 Feb. 13 Statement, supra note 27, at 1 (noting that the Five had discussed “the status and functions o f a United Nations administration”); P -5 Mar. 13 Statement, supra note 27, at 3; Frame­ work Document, supra note 28, paras. 8 -1 2 .

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tions,” “to provide UNTAC with the mandate set forth in this A greem ent,” and “ to keep its implementation under continuing review.”57 Second, as noted, the SNC delegates to UNTAC all powers needed to ensure the execution of the Agree­ ment, as set forth in an annex on UNTAC’s mandate.58 Thus, the Agreement provides the consent by Cambodia that will enable the United Nations to perform internal functions normally reserved to a state’s own government.59 Third, the body of the Agreement and the annex include details on the author­ ity o f UNTAC, with respect to its relationships to the SNC and the governments in place and to the tasks that it should perform , i.e., the depth and breadth o f its power.60 The depth of UNTAC’s authority is described in the annex by the follow­ ing scheme: UNTAC must comply with any advice from the SNC on any aspect of the settlement61 if (1) the SNC is acting unanimously when it gives its views or, in the absence of unanimity, Prince Sihanouk, as President of the Council, provides the advice on the Council’s behalf, “ taking fully into account” its members’ views; and (2) the advice is “consistent with the objectives o f the present A greem ent” as determined by the chief of UNTAC, the Secretary-General’s Special Representa­ tive.62 If the SNC does not provide advice to UNTAC— either unanimously or through Prince Sihanouk— or that advice is not compatible with the goals of the Agreement, the Special Representative retains the legal prerogative to act in any situation.63 As a practical matter, however, the Special Representative will usually need the SNC’s consent to take important action. The Agreement thus legally empowers the Special Representative to exercise his authority in the absence of guidance from the SNC and to reject that guidance if inconsistent with the goals of the accord. It also recognizes Prince Sihanouk’s status as a unique force for national reconciliation, independent of the factions, and, as such, capable of speaking for the SNC if discord among its members produces a deadlock.64 The breadth of UNTAC’s authority, as examined below, includes civil administration, military operations, administration of elections and hum an rights monitoring. Core Cambodian Obligations and UNTAC Functions Civil administration. The most exceptional feature of the Paris accords is UNTAC’s mandate regarding the administration o f Cambodia prior to the installa­ tion of a democratically elected government. For the first time, the international community has empowered the United Nations to undertake key aspects of the civil administration of a member state. Although the United Nations has engaged in numerous peacekeeping and election control missions with the state’s con-

57 Comprehensive Settlement Agreement, supra note 34, Art. 2. 58 Id., Art. 6. 59 The SNC’s grant o f authority to UNTAC in Article 6 o f the Comprehensive Settlement Agreement should eliminate any questions about the consistency o f UNTAC’s mission with the ban under Charter Article 2(7) on UN interference in matters within the domestic affairs o f member states. 60 Comprehensive Settlement Agreement, supra note 34, Arts. 6, 7, 11, 13, 16, Anns. 1-3. 61 This does not apply to elections, over which UNTAC is given absolute authority not subject to veto by the SNC. See text at and notes 1 24-25 infra. 62 Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. A, para. 2(a), (d) and (e). 63 Id., para. 2(c) and (d). 64 See Final Communiqué o f the Informal Meeting o f the Supreme National Council o f Cambodia at 1 (Beijing, July 17, 1991) (electing Sihanouk SNC President, acknowledging his role “above all parties,” and noting his resignation from positions with the resistance) (on file with the author).

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sent,65 never before has it been entrusted with overseeing the adm inistration o f a member state. The proponents of an enhanced UN role, in contemplating the organization and functions of UNTAC, thus had no precise precedents from which to work. The multilateral Peace Treaty with Italy had authorized the Security Council to ap­ prove a provisional regime and appoint a governor to administer the Free T erri­ tory o f Trieste,66 but early Cold War rivalries prevented the appointm ent o f a governor.67 The General Assembly’s partition plan for Palestine had called for the creation of a corpus separatum for Jerusalem u nder a “special international re­ gime” administered by the Trusteeship Council,68 but the Arab states and Israel ultimately rejected the plan.69 The General Assembly had also created the Council for Namibia in 1966,70 but because of South Africa’s continuing occupation never carried out this administration.71 The only precedent for direct UN adm inistration o f any territory was the United Nations Temporary Executive Authority (UNTEA), which governed the western half o f New Guinea (Irian Jaya) during its transition from Dutch to In ­ donesian rule. The Netherlands and Indonesia had agreed by treaty to transfer administration of the non-self-governing territory to UNTEA, which would admin­ ister it until transfer to Indonesia,72 and the General Assembly had then author­ ized the Secretary-General to perform the tasks in the Agreem ent.73 From Oc­ tober 1, 1962, to May 1, 1963, UNTEA adm inistered West Irian, replacing Dutch officials with UN officials from third countries, who were ultimately supplanted by Indonesian officials. The operation, though politically little m ore than a face-sav­ ing device for the Netherlands, was a significant success, but until the Cambodian accords no such effort had been attem pted again.74 The Agreement provides for an expansive mandate with respect to civil adminis­ tration. It sets up a three-tiered system to govern the relationship o f the Secre-

65 See U nited N ations , T he B lue H elmets: A Review of U nited N ations Peacekeeping 4 1 9 49, UN Sales No. E.90.I.18 (1990) [hereinafter T he Blue H elmets]. 66 Treaty o f Peace with Italy, Feb. 10, 1947, Art. 21 and Ann. VI, 61 Stat. 1245, 1380, 1429, 49 UNTS 3, 137, 186. 67 The status o f Trieste was eventually resolved in the Memorandum o f Understanding Between the Governments o f Italy, the United Kingdom, the United States, and Yugoslavia Regarding the Free Territory o f Trieste, Oct. 5, 1954, 5 UST 2386, 235 UNTS 99. 68 GA Res. 181, UN Doc. A /5 1 9 , at 131, 146 (1948). 69 The Trusteeship Council adopted a Draft Statute for Jerusalem, UN Doc. T /L .78, in 1950. See also 1950 Y.B.U.N. 3 3 5 -4 1 , UN Sales No. 1951.1.24. 70 GA Res. 2248, UN GAOR, 5th Spec. Sess., Supp. No. 1, at 1, UN Doc. A /6 6 5 7 (1967). 71 The civilian component o f the United Nations Transitional Assistance Group, created under SC Res. 435, UN SCOR, 33d Sess., Res. 8c Dec. at 13, UN Doc. S /IN F /3 4 (1978), engaged in oversight and supervision o f the transition to independence, with special attention given to monitoring the South African police forces and election administrators, but not direct administration. See Report o f the Secretary-General Submitted pursuant to Paragraph 2 o f Security Council Resolution 431 (1978) concerning the Situation in Namibia, UN Doc. S /1 2 8 2 7 , at 7 -8 (1978); T he B lue H elmets, supra note 65, at 3 4 1 -8 8 . 72 Agreement Concerning West New Guinea (West Irian), Aug. 15, 1962, Indon.-N eth., 437 UNTS 274. 7S GA Res. 1752, UN GAOR, 17th Sess., Supp. No. 17, at 70, UN Doc. A /5 2 1 7 (1962). 74 See Annual Report o f the Secretary-General on the Work o f the Organization, 16 June 1 9 6 2 -1 5 June 1963, UN GAOR, 18th Sess., Supp. No. 1, at 35, UN Doc. A /5501 (1963); see also T homas M. Franck , N ation A gainst Natio n : W hat H appened to the U.N. D ream and W hat the U.S. Can D o A bout It 7 6 -8 2 (1985). The League o f Nations governed the Saar Basin in 19 2 0 -1 9 3 5 , and held a generally fair plebiscite in 1935 that resulted in the Saar’s reunification with Germany. See F rank P.

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tary-General’s Special Representative and UNTAC to the current governmental structures in Cambodia, i.e., the large administrative apparatus o f the State o f Cambodia, as well as the smaller organs of the resistance in the areas it controls.75 First, the Agreement places “under the direct control o f UNTAC” “all administra­ tive agencies, bodies and offices acting in the field of foreign affairs, national defence, finance, public security, and inform ation,” the five areas most im portant to creating conditions for free and fair elections.76 The Special Representative may exercise that control to the extent he deems necessary to ensure the strict neutrality of the elections and to create the proper environm ent for holding them, including by issuing binding directives.77 Second, UNTAC maintains “supervision or control” over any other governmen­ tal com ponents that “could directly influence the outcome o f elections.”78 These agencies include those responsible for education, public health, agriculture, fisheries, energy, transportation and communications— activities that are not cen­ tral to electoral neutrality but, if administered in a partisan manner, could affect the outcome. Civilian police will operate under such supervision or control, and the Special Representative alone determines the required levels of police pres­ ence; other judicial processes may be placed un d er UNTAC’s supervision so as to protect law and order as well as human rights.79 The Special Representative may issue “guidance” to these agencies, but this guidance is as binding as the directives he issues to the bodies he directly controls.80 Third, the least degree of UNTAC intervention is reserved for those agencies that, in the Special Representative’s judgm ent, “ could continue to operate in order to ensure normal day-to-day life in Cambodia.” These organs, charged with less-politicized matters such as cultural affairs, are not subject to supervision or control, but the Special Representative may conduct investigations, at his own initiative or in response to complaints, to determ ine if they are underm ining the objectives of the settlement.81 He may take corrective steps, which would include placing these organs under greater supervision or control. Finally, the Special Representative possesses two specific prerogatives with re­ spect to all governmental entities: to put in place UN personnel with unfettered access to all operations and documents and to require the reassignment or re­ moval of any Cambodian personnel.82 These two capabilities are essential to the Walters , A H istory of the League of N ations 82, 8 9 -9 0 , 2 3 9 -4 3 , 5 8 6 -9 8 (1952). See also A rthur H. H ouse , T he U.N. in the Cong o : T he P olitical and Civilian Efforts (1978) (describ­ ing de facto UN control over parts o f Congo administration). 75 See UN Doc. A /4 6 /6 1 -S /2 2 0 5 9 , supra note 31, Ann. I ll (Explanatory Note prepared by UN officials describing three-tiered system and appended to P -5 Draft) [hereinafter Explanatory N ote]. The Permanent Five, Australia and the United Nations considered many options on the nature o f the UN role in civil administration. See A ustl . D ep ’t of Foreign A ffairs and T rade , supra note 43, at 1 3 -1 5 , 2 1 -3 4 . 76 Comprehensive Settlement Agreement, supra note 34, Art. 6 and Ann. 1, sec. B, para. 1. 77 Id. 78 id .y Art. 6 and Ann. 1, sec. B, para. 2. 79 Id., Ann. 1, sec. B, para. 5(a) and (b). To the extent that police functions fall under public security, they may also be subject to direct UNTAC control. See text at and note 76 supra. 80 Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. B, para. 2 (“These administra­ tive agencies . . . will comply with any guidance provided by [UNTAC].”). 81 Id., Art. 6 and Ann. 1, sec. B, para. 6. The Special Representative may also carry out investiga­ tions regarding those entities over which he exercises the two greater levels o f control. 82 Id., Ann. 1, sec. B, para. 4. The Explanatory Note, supra note 75, at 36, states that this power will only be asserted if such persons “have acted in a manner inconsistent with the objectives o f the settlement agreement.”

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effectiveness of UNTAC’s part in civil administration; thus, they m erited special mention. The enum eration of these rights does not exclude other actions by the Special Representative when needed to perform his functions.83 This scheme for the interaction between the Special Representative and the existing governmental structures does not override the procedures governing his relationship with the SNC.84 He must still follow the guidance o f the SNC, when unanimously given and consistent with the settlement, even if it derogates from his powers with respect to the existing structures.85 For example, if the SNC unanimously directed the Special Representative to cease his supervision o f a certain agency of the State of Cambodia, he would have to comply unless he judged the decision to be incompatible with the settlement, e.g., by threatening the impartiality of the elections. This legal hierarchy reflects political reality: if the factions concur upon a course of action, including a limitation o f the Special Representative’s power, he can only veto that decision by challenging it as incon­ sistent with the settlement. The Comprehensive Settlement Agreem ent thus affords considerable adminis­ trative authority to UNTAC and specificity in describing it. It contrasts with the agreement on West Irian, which simply gave the head o f UNTEA “ full authority under the direction of the Secretary-General to administer the territory.”86 The more thorough treatm ent in the Cambodia accords derives from the complexities inherent in the management o f a UN mem ber state (including sensitivities about sovereignty not applicable to non-self-governing territories87) and the perceived need to anticipate many contingencies because o f the intractable differences among the factions. The extent to which the Special Representative in fact exer­ cises his authority will depend upon the SNC’s success in achieving consensus, the risk to the credibility of UNTAC from noncompliance with its directives, and other factors. He may find that forging a consensus within the SNC advances the settle­ ment more than any unilateral action. Military arrangements. The provisions o f the Agreement on civil adm inistration attem pt to create one essential precondition for free and fair elections— a neutral political environment. The other prerequisite— a peaceful country— is addressed under the sections on military arrangements. The Agreem ent covers these issues in three places: the main text, which sets forth key elements in general terms; the annex on the UNTAC mandate; and a lengthy annex detailing the obligations o f the combatants.88 It incorporates ideas accepted at the Paris Conference, then 85 Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. B, para. 4 (“the authority o f the . . . Special Representative will include the power to [install UN personnel and remove existing personnel]”) (emphasis added). 84 See supra text at notes 6 1 -6 3 . 85 The Agreement does not specify the priority o f the SNC’s directives to the Special Representative over those o f the Special Representative to the existing governmental entities. Nevertheless, a funda­ mental premise o f the SNC’s delegation o f authority to UNTAC is that if the SNC speaks with one voice in a manner consistent with the settlement agreement, its guidance must be fulfilled. The SNC’s authority is subordinate to UNTAC’s only with respect to elections. See infra text at notes 124-25. 86 Agreement Concerning West New Guinea, supra note 72, Art. V, 437 UNTS at 276. However, that Agreement granted UNTEA the authority to promulgate new laws and regulations and amend existing ones. Id., Art. XI, 437 UNTS at 278. Although the Comprehensive Settlement Agreement only enumerates this power with respect to elections, see infra text at notes 1 2 6 -2 7 , UNTAC’s author­ ity to issue directives appears to be equivalent to the ability to impose new legislation and regulations. 87 See text at and notes 1 3 3 -4 4 infra. 88 Comprehensive Settlement Agreement, supra note 34, Arts. 8 -1 1 , 21-22; Ann. 1, sec. C; Ann. 2. Annex 2 contains obligations o f individual Cambodian parties, as well as o f the Paris Conference

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refined and supplemented by the Perm anent Five, Indonesia and UN officials in 1990, and later altered by the Cambodian parties during negotiations in 1991.89 Seven measures are designed to restore peace to Cambodia. First, foreign mili­ tary personnel— in particular Vietnamese troops and advisers— must leave Cam­ bodia immediately with their equipment and not return, and compliance must be verified by UNTAC.90 The Agreement reflects the concerns of many states that only the United Nations could prove Vietnam’s assertions that it had withdrawn its forces.91 Second, the Agreement requires a cease-fire upon its entry into force. This cease-fire takes place in two phases, one beginning immediately, and the other after deployment of UNTAC’s military com ponent permits full verification and supervision.92 The cease-fire provisions have ample precedents in other armistice agreements93 but do not contain their level o f detail. For example, dem arcation lines, timetables and deployment areas are not included. The Agreement leaves these matters to the United Nations to develop on the basis of its expertise, its assessment of the situation on the ground, and the views o f the belligerents. Participants in the peace process feared that negotiation of the particulars o f the cease-fire would delay, if not prevent, conclusion o f the peace accords. Third, the Cambodian parties must cease receiving, and the other states stop providing, any external military assistance, “including weapons, ammunition and military equipm ent,” and the states bordering Cambodia must prevent the use of their territory for such aid.94 These sections o f the Agreement are addressed to an im portant feature of the Cambodian war that rendered it international— the sub­ stantial aid funneled to the Phnom Penh regime and the resistance after the Vietnamese invasion. The form er received military support from Vietnam and the Soviet Union; most of the latter’s weapons and equipment originated in China and were transported through Thailand.95 O ther countries supplied only non­ states; it was placed in the Comprehensive Settlement Agreement and signed by all the conference states (but with Cambodia qua Cambodia, not as four factions) to reduce the number o f agreements to be concluded to two. 89 See Comm. I Rep., supra note 23; Framework Document, supra note 28, paras. 13-19; Communi­ qué, supra note 32. 90 Comprehensive Settlement Agreement, supra note 34, Art. 8; Ann. 1, sec. C, para. 1(a); Ann. 2, Art. VI. For an unexpected complication arising from this provision, see Wash . Post , Oct. 11, 1992, at A46 (reporting surrender to UNTAC o f Vietnam War-era Montagnard guerrillas in eastern Cam­ bodia). 91 See, e.g., GA Res. 4 4 /2 2 , UN GAOR, 44th Sess., Supp. No. 49, at 29, 30, UN Doc. A /4 4 /4 9 (1989) (noting “ the announced withdrawal o f foreign forces from Kampuchea, but emphasizing that it has not been verified under supervision and control o f the United Nations and is not within the framework o f a comprehensive political settlement”). 92 Comprehensive Settlement Agreement, supra note 34, Art. 9 and Ann. 2, Art. I. 93 See, e.g., Agreement Between the Commander-in-Chief, United Nations Command, on the One Hand, and the Supreme Commander o f the Korean People’s Army and the Commander o f the Chinese People’s Volunteers, on the Other Hand, Concerning a Military Armistice in Korea, July 27, 1953, Art. II, 4 UST 234, 239 [hereinafter Korean Armistice Agreement]; General Armistice Agree­ ment, Feb. 24, 1949, Egypt-Isr., Art. II, 42 UNTS 252, 254; Agreement on Ending the War and Restoring Peace in Viet-Nam, Jan. 27, 1973, ch. II, 24 UST 1, 5, 935 UNTS 52, 52. See also Sydney D. Bailey, Cease-Fires, Truces, and Armistices in the Practice o f the UN Security Council, 71 AIIL 461 (1977). 94 Comprehensive Settlement Agreement, supra note 34, Art. 10; Ann. 1, sec. C, para. 1(c); Ann. 2, Art. VII. 95 See Cambodia : A C ountry Study , supra note 2, at 2 7 1 -7 6 , 287; Chanda , supra note 7, at 3 4 8 -4 9 , 3 8 1 -8 2 .

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lethal aid to the resistance or, in the case o f the United States, to the non-Communist elements of the Coalition Government.96 The A greem ent’s broad defini­ tion of “military assistance” bars all aid the parties can use to prolong the military conflict; resupply of humanitarian goods is perm itted, subject to UNTAC’s super­ vision.97 Fourth, all Cambodian forces must regroup and move, with their arms and equipment, to cantonment areas to be designated by UNTAC. Upon entering the cantonments, they must turn over their arms to UNTAC for storage.98 This process of separating and confining the forces is necessary because the resistance controls scattered territory and the war has lacked the clear battle lines that would perm it disengagement, withdrawal and demilitarized zones. Existing caches o f arms, a consequence of over a decade of foreign military aid, are to be destroyed by UNTAC.99 Fifth, the Cambodian factions must demobilize at least 70 percent of their forces according to a plan prepared by UNTAC and conclude this process prior to the completion of electoral registration. The remaining 30 percent must either be (1) demobilized before or shortly after the election, o r (2) made available to the elected government for incorporation in a national army. Those forces not so assimilated will be demobilized.100 These obligations, under the euphemistic head­ ing “ultimate disposition o f the forces,” proved among the most difficult to nego­ tiate. The actors in the peace process understood that the pace at which com bat­ ants return to civilian life has a direct impact on the electoral process and the power o f the winners and losers after the elections. The opposition o f the State of Cambodia, with the largest army and the most to lose from full demobilization, to the Permanent Five’s draft, requiring demobilization o f all forces, necessitated substantial revisions in 1991.101 Sixth, the Agreement calls for the release o f prisoners o f war and civilian intern­ ees (defined as all non-POWs detained on account o f their participation in the “ armed or political struggle”), to be undertaken by the International Committee of the Red Cross.102 Finally, the factions must assist in the removal o r deactivation of mines.103 UNTAC’s mandate in the military field, while less novel than that on civil adm in­ istration, is equally significant to the settlement. From the time o f the JIM , the parties to the conflict agreed that an international presence should “control” the military aspects of the settlement. Despite resistance by the State o f Cambodia and its allies in 1989,104 all the participants eventually agreed that the Paris accords, unlike earlier peace settlements for Indochina that set up free-standing (and inef96 See, e.g., International Security and Development Cooperation Act o f 1985, Pub. L. No. 99-83, secs. 9 0 5 -9 0 6 , 99 Stat. 190, 2 6 8 -6 9 (authorizing funds for non-Communist resistance). 97 Comprehensive Settlement Agreement, supra note 34, Ann. 2, Art. VII(2)(a). 98 Id., Art. 11; Ann. 1, sec. C, paras. 2 -3 ; Ann. 2, Arts. III-IV . 99 Comprehensive Settlement Agreement, supra note 34, Ann. 2, Art. VIII(2). 100 Id., Art. 11; Ann. 1, sec. C, para. 4; Ann. 2, Art. V. 101 See P -5 Draft, supra note 31, at 20; Commentary Argues Against Dissolution o f Troops, FBIS, E. Asia Daily Rep ., Aug. 12, 1991, at 36 (State o f Cambodia radio). 102 Comprehensive Settlement Agreement, supra note 34, Arts. 2 1 -2 2 ; Ann. 1, sec. C, para. 5; Ann. 2, Art. XI. 103 Id., Ann. 1, sec. C, para. 1(e); Ann. 2, Art. IX. Estimates o f the number o f unexploded hidden mines in Cambodia range from five hundred thousand to five million. N.Y. T imes, Nov. 10, 1991, §1, at 12. 104 See Comm. I Rep., supra note 23, Amendments, at 1 (proposed amendments for international control mechanism under UN auspices not accepted by all states). This objection was based on the

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fective) supervisory mechanisms,105 would provide for a force organized under UN auspices, taking advantage of the O rganization’s long experience in peace­ keeping. U nder the Agreement, UNTAC verifies the withdrawal and nonreturn of Viet­ namese troops; determines the timing of and monitors the cease-fire; establishes an operational timetable and detailed plan for, and then supervises, the regroup­ ment, cantonment and demobilization of forces; receives and guards the weapons and equipment from cantoned forces; monitors the cessation of outside assistance along Cambodia’s land and sea frontiers; interacts with neighboring governments regarding the settlement; locates and destroys caches of weapons; assists the Red Cross with POW exchanges; and contributes to mine-clearing operations.106 To enable UNTAC to accomplish these missions, it is to be provided with essen­ tial information: the factions must furnish the numbers and positions of, and weapons possessed by, their forces; they must also indicate the location of arms caches, external resupply routes and mines; and details about the withdrawal o f foreign troops must be supplied.107 Finally, the Agreement establishes three mechanisms to resolve military-related disputes. At the lowest level, a Mixed Military Working Group is composed of senior military representatives from each faction and chaired by the chief o f UNTAC’s military com ponent.108 Such groups are common in armistices.109 The working group serves as a mechanism for interaction by the UNTAC military com­ m ander with all factional forces to facilitate execution o f the Agreement and as a first level of response to suspected infractions. It is aimed at resolving as many issues as possible at the military level. If the working group cannot resolve a dispute, UNTAC, on its own or in response to a complaint, may investigate cases of noncompliance and report its findings to the factions involved and the SNC if necessary.110 At the third level, the issue would be elevated to international consid­ eration under Article 29 of the Agreement, by which the Secretary-General may bring any compliance m atter to the attention o f the Security Council or the cochairmen of the Paris Conference.111 Elections. The goal of the civilian and military arrangements is a politically neutral and peaceful environment for free and fair elections. Elections have re­

view o f Vietnam and the State o f Cambodia that, in light o f the annual General Assembly resolutions on Cambodia, the United Nations would be biased during the implementation o f the settlement. 105 See, e.g., Agreement on the Cessation o f Hostilities in Viet-Nam, July 20, 1954, Art. 34, 935 UNTS 149, 159 (international control commission composed o f members from India, Canada and Poland); Protocol to the Declaration on the Neutrality o f Laos, July 23, 1962, Art. 1 ,1 4 UST 1129, 456 UNTS 324 (using 1954 India-Canada-Poland commission for Laos); Agreement on Ending the War and Restoring Peace in Viet-Nam, supra note 93, Art. 18, 24 UST at 15, 935 UNTS at 59 (commission composed o f members from Canada, Poland, Indonesia and Hungary). 106 Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. C, and Ann. 2. 107 Id., Ann. 2, Arts. 1(3), VI(1), VII(3), VIII. Article VI(1) does not specify who shall provide UNTAC with information about the withdrawal o f foreign forces. 108 Id., Ann. 2, Art. II. 109 See, e.g., Korean Armistice Agreement, supra note 93, Art. IIB, 4 UST at 244 (Military Armistice Commission); Agreement on Ending the War and Restoring Peace in Viet-Nam, supra note 93, Arts. 1 6 -1 7 , 24 UST at 12 -1 5 , 935 UNTS at 57—59 (four-party and two-party Joint Militar)' Commissions); Agreement between Egypt and Israel, Sept. 4, 1975, Art. VI, 14 ILM 1450, 1451 (1975) (joint commission); Rhodesia: Cease-Fire Agreement, Dec. 21, 1979, para. 2, 19 ILM 401, 401 (1980) (same). 110 Comprehensive Settlement Agreement, supra note 34, Ann. 2, Art. X. 111 See infra text at note 174.

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mained a sine qua non of the resolution o f the Cambodian conflict throughout the peace process and one on which the parties readily concurred, at least in principle.112 The differences among the factions concerned the circumstances under which elections should occur. Indeed, from this perspective, the peace process was a negotiation over the appropriate conditions for elections. The Viet­ namese-installed regime was always willing to hold elections, in the certainty that the institutions it had built would guarantee victory— even in the presence o f international observers. Most of the world community focused on the need for a “ level playing field” to make the act o f self-determination meaningful. When the organization of an interim government to create these prerequisites proved im­ possible, an enlarged UN role became the linchpin o f the settlement. The basic provision on elections is Article 12 o f the Comprehensive Settlement Agreement, which states: The Cambodian people shall have the right to determ ine their own political future through the free and fair election o f a constituent assembly, which will draft and approve a new Cambodian Constitution in accordance with Article 23 and transform itself into a legislative assembly, which will create the new Cambodian Government. This election will be held un d er United Nations auspices in a neutral political environm ent with full respect for the national sovereignty of Cambodia. A separate Elections Annex contains the most im portant requirem ents regarding the elections. First, the elections will be based upon proportional representation within each province, with each political party offering lists o f candidates.113 This formulation was a compromise between the Perm anent Five’s draft and a counterproposal by the State o f Cambodia.114 The form er called for a nationwide system o f p ro p o r­ tional representation, under which the resistance, including the Khmer Rouge, could have achieved a sizable representation in the assembly even though its support is mostly dissipated and predom inant only in isolated pockets.115 The Phnom Penh government advocated single-member constituencies, i.e., a winnertake-all system within each district by which the candidate o f the victorious party represents that district. The State of Cambodia presumably believed that, because of its control over most Cambodian territory, single-member constituencies could well result in its sweeping the country. U nder the compromise formula, each province will have elections with slates of candidates; the makeup o f that prov­ ince’s delegation to the national assembly will reflect the proportion o f votes received by each slate. This solution protects the State o f Cambodia’s presum ed predominance in most provinces but translates support for the resistance into seats in the assembly. Second, the Elections Annex deals with participation by individuals and politi­ cal parties. As for individual Cambodians, the Agreem ent enfranchises all persons over the age o f eighteen born in Cambodia o r to a parent born in Cambodia, 1,2 See, e.g., JIM II Statement, supra note 19, at 4; PCC Mandate, supra note 21. See also Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46, 6 3 -7 7 (1992) (emergence o f free and fair elections as norm o f international law). 118 Comprehensive Settlement Agreement, supra note 34, Ann. 3, para. 2. 114 See P -5 Draft, supra note 31, at 24; H un Sen, Sihanouk to Gain from Electoral System, FBIS, E. A sia Daily Rep., Sept. 20, 1991, at 34 (Agence France Presse report). 115 N.Y. T imes, N ov. 14, 1991, at A3 (interview with U.S. Mission chief Charles Twining).

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including refugees and displaced persons.116 This formula will allow both native Cambodians and most returning refugees to vote and thus seems reasonable. Moreover, by adopting an approach based on birth and parentage, rather than legal status (such as whether such persons were citizens of Cambodia under an earlier Cambodian law), the Agreement makes UNTAC’s task easier. This solution also overcomes the sharp disagreements between the State of Cambodia and the resistance over the status of Vietnamese settlers in Cambodia. These settlers, numbering perhaps 300,000, had arrived from Vietnam after the 1978 invasion; they comprise ethnic Vietnamese who had lived in Cambodia prior to their expulsion by the Khmer Republic or Democratic Kampuchea, and south­ ern Vietnamese who moved into Cambodia behind the Vietnamese army, seeking economic gain.117 Because the status of these persons under Cambodian law118 and international law119 is complex and the issue proved extremely volatile politi­ cally,120 a definitive resolution of their status in the Agreement seemed impossi­ ble. The formula constitutes an equitable way of determining which Vietnamese settlers vote by excluding persons with no links to Cambodia; a settler born in Vietnam to parents born there lacks electoral rights, whereas those born in Cam­ bodia or whose parents were born there may vote. In addition, responsibility for the ultimate fate of the settlers is appropriately placed with the elected gov­ ernment. Under the arrangements for participation by candidates and parties, any five thousand voters may form a party, which must then register with UNTAC; persons may run for office only on a party slate. Party platforms must “be consistent with the principles and objectives of the Agreement,” the United Nations will confirm that the parties and candidates “meet the established criteria,” and parties and candidates must adhere to an UNTAC-prepared code of conduct.121 This scheme attempts to speak to the electoral involvement of members of the Khmer Rouge, particularly those active during its reign. Negotiation of these provisions proved diplomatically sensitive in light of the need for all parties— including the Khmer 116 Comprehensive Settlement Agreement, supra note 34, Ann. 3, paras. 3 -4 . See also text at and note 239 infra (UNTAC’s modification o f these provisions for 1992 electoral law). 1171 am grateful to Dottie Avery o f the State Department’s Bureau o f Intelligence and Research for background on the settlers. See also Nayan Chanda, Wounds o f History, Far E. Econ . Rev ., July 30, 1992, at 14; Chanda , supra note 7, at 3 7 5 -76. 118 Under the law in effect at the start o f Prince Sihanouk’s reign, to be a citizen, a person generally had to have been born in Cambodia to parents born in Cambodia, or the child (wherever born) o f such a person. Kram No. 913-N S, Art. 22, Journal Officiel du Cambodge, Dec. 2, 1954. 119 See Geneva Convention Relative to the Protection o f Civilian Persons in Time o f War, Aug. 12, 1949, Art. 49, 6 UST 3516, 3548, 75 UNTS 287, 318 (“The Occupying Power shall not deport or transfer parts o f its own civilian population into the territory it occupies.”). The applicability of this phrase to ethnic Vietnamese who had lived for many years in Cambodia is not clear from either the text or authoritative commentary. See Commentary, IV G eneva C o n v e n tio n R e la tiv e t o t h e P ro ­ t e c t io n of C iv ilia n Persons in Time of W ar 283 (Jean S. Pictet ed., 1958). One underlying pur­ pose o f the Convention— to preserve the status quo in occupied lands until achievement o f a political solution— suggests that it bars even the transfer o f persons with strong ties to Cambodia. See id. at 27 2 -7 3 . However, regardless o f the means by which settlers entered Cambodia, the presence o f some, especially those who were once citizens o f Cambodia, may be legal under international human rights law. See, e.g., Universal Declaration o f Human Rights, Art. 13(2), GA Res. 217, UN Doc. A /810, at 71, 74 (1948) (“Everyone has the right to . . . return to his country.”); International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 12(4), 999 UNTS 171, 176 (entered into force Mar. 23, 1976) [hereinafter ICCPR] (“No one shall be arbitrarily deprived o f the right to enter his own country.”). 120 See supra note 24. 121 Comprehensive Settlement Agreement, supra note 34, Ann. 3, paras. 5, 7.

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Rouge members of the SNC and their supporters, such as China— to agree to any settlement. The formula is constructive in that any candidates overtly advocating a platform inconsistent with the settlement, such as a return to the policies o f the late 1970s, would be disqualified. However, the likelihood that a party or candi­ date would endorse such a position is rem ote.122 The more difficult question, left unresolved by the Agreement, is whether certain officials from the Khmer Rouge years who were clearly associated with the atrocities will be perm itted to run. H ere the accord reaches its limits: the solution to this problem requires a decision by UNTAC, after consultation with the SNC (under the procedures o f the Agree­ ment), and perhaps interested outside powers. Third, the Agreement sets forth the basic rules for the conduct o f the elections. Voting will be by secret ballot; the parties are to ensure freedom o f speech, assembly and movement; and each party will have “ fair” access to the media.123 These rights and duties require further elaboration by UNTAC in its code of conduct and other electoral regulations. UNTAC’s role in the electoral process is param ount: under Article 13, it is “ responsible for the organization and conduct o f these elections.” Having UNTAC conduct the elections, rather than only supervise, m onitor and control them, proved to be a significant addition to the elements o f the settlement made by the Perm anent Five.124 Moreover, UNTAC is not beholden to the SNC— even if the SNC speaks unanimously— with respect to the elections. The Agreement makes this relationship generally evident, although it is not a paragon o f clarity.125 While the Special Representative may need to overrule the SNC on the electoral process only rarely (e.g., if the members of the SNC agree on procedures that further their own ends but corrupt the process), he retains the authority to do so. UNTAC’s responsibilities include establishing electoral laws and procedures and invalidating existing laws that would not furth er the settlement, setting the time­ table, registering voters and parties, organizing and conducting the polling, re­ sponding to complaints, arranging for foreign observation, and certifying the elections as free and fair.126 The creation o f laws and procedures is a critical legislative function granted to UNTAC regarding elections and is not provided generally for other areas o f civil adm inistration.127 UNTAC’s mandate thus surpasses that of the United Nations in the four most recent instances of UN control o f elections:128 Namibia, Nicaragua, Haiti and 122 See, e.g., Wash . Post , N ov. 18, 1991, at A13 (Khmer Rouge leader Son Sen, on return to Phnom Penh, stated: “The past is history. W e’d better talk about the future.”). 123 Comprehensive Settlement Agreement, supra note 34, Ann. 3, paras. 8, 9. 124 See P -5 Jan. 16 Statement, supra note 27, at 1 (first proposing “direct UN administration”); Framework Document, supra note 28, para. 20 (“The United Nations should be responsible for the organization and conduct o f free and fair elections . . .”). 125 In addition to the language in Article 13 quoted above, the portion o f the mandate o f UNTAC describing its electoral functions refers only to the Elections Annex, and not to that part o f the mandate describing UNTAC’s relationship with the SNC. Comprehensive Settlement Agreement, su­ pra note 34, Ann. 1, sec. D, para. 1 (“ UNTAC will organize and conduct the election . . . in accord­ ance with this section and annex 3 [on elections].”). The mechanism for the relationship between UNTAC and the SNC (requiring the Special Representative to comply with the SNC’s advice when unanimous and consistent with the settlement) states, however, that it “will be used to resolve all issues relating to the implementation o f this Agreement [between the Special Representative and the SNC].” Id., Ann. 1, sec.-A, para. 2. 126 Id., Ann. 1, sec. D. 127 See supra note 86. 128 For a review o f UN practice and policy in the supervision o f elections, see Enhancing the effectiveness o f the principle o f periodic and genuine elections, Reports o f the Secretary-General, UN Docs. A /4 6 /6 0 9 (1991) and A /4 7 /6 6 8 (1992).

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Angola. In the case of Namibia, the Security Council’s peace plan129 involved close UN oversight of South African authorities, who conducted the elections. Similarly, the elections supervised by the United Nations Observer Mission in Nicaragua,130 and those observed by the United Nations Observer Mission in H aiti,131 were administered by the national governments, albeit with close UN oversight. A more intrusive UN role, analogous to that in Cambodia, is planned for W estern Sahara.132 Cambodian “sovereignty” under the Comprehensive Settlement Agreement. Dur­ ing the negotiations, UNTAC’s vast power, especially in civil administration, raised concerns of a possible diminution in the sovereignty of Cambodia. The State o f Cambodia typically voiced these objections to prevent significant UNTAC control over its governmental organs.133 Although the participants in the peace process tried to allay these fears through new textual provisions134 and authoritative inter­ pretations,135 diminution of sovereignty as a m atter o f international law merits inquiry. To international lawyers, it is now axiomatic that the “will-o’-the-wisp o f sover­ eignty” 136 is one of the most elusive and misused terms in our field. While recog­ nizing the am orphous nature of the term, conventional wisdom has assigned it 129 SC Res. 435, supra note 71. See also Letter Dated 10 April 1978 from the representatives o f Canada, the Federal Republic o f Germany, France, the United Kingdom o f Great Britain and N orth­ ern Ireland and the United States o f America to the President o f the Security Council, UN SCOR, 33d Sess., Supp. for Apr.-June 1978, at 1 7 -1 9 , UN Doc. S /1 2 6 3 6 (1978) (Proposal for a settlement o f the Namibian situation); Letter Dated 12 July 1982 from the representatives o f Canada, the Fed­ eral Republic o f Germany, France, the United Kingdom o f Great Britain and Northern Ireland and the United States o f America to the Secretary-General, id., 37th Sess., Supp. for July-Sept. 1982, at 12, UN Doc. S/1 5 2 8 7 , Annex (1982) (Principles concerning the Constituent Assembly and the Con­ stitution for an independent Namibia) [hereinafter Namibia Principles]. 130 See The Situation in Central America: Threats to International Peace and Security and Peace Initiatives, Letter dated 6 July 1989 from the Secretary-General addressed to the President o f the Security Council, UN Doc. A /4 4 /3 7 5 (1989) (mandate o f observer mission); The Situation in Central America: Threats to International Peace and Security and Peace Initiatives, N ote by the SecretaryGeneral, UN Doc. A /4 4 /9 2 7 (1990) (final report o f Special Representative). The Nicaraguan mission was the first case o f UN supervision and verification o f elections in a member state. See also Franck, supra note 112, at 7 1 -7 7 (evaluating UN election monitoring in member states). 191 See GA Res. 4 5 /2 , UN GAOR, 45th Sess., Supp. No. 49A, at 12, UN Doc. A /4 5 /4 9 (1990) (creating observer mission); Special Economic and Disaster Relief Assistance, Electoral Assistance to Haiti: Note by the Secretary-General, UN Doc. A /4 5 /8 7 0 /A d d .l (1991) (report on mission). 132 See SC Res. 690 (Apr. 29, 1991) (establishing United Nations Mission for the Referendum in the Western Sahara); The Situation Concerning Western Sahara, Report by the Secretary-General, UN Doc. S /2 2 4 6 4 (1991) (implementation plan); The Situation Concerning Western Sahara, Report o f the Secretary-General, UN Doc. S /2 1 3 6 0 (1990) (peace plan giving Secretary-General’s representa­ tive “sole and exclusive authority over all matters relating to the referendum, its organization and conduct” ; id. at 6). 133 See, e.g., Factions Urged to Respect Sovereignty, FBIS, E. A sia D aily Rep ., Aug. 26, 1991, at 6 (State of Cambodia radio). 134 See Comprehensive Settlement Agreement, supra note 34, preambular para. 7 (“Recognizing that an enhanced United Nations role requires the establishment o f [UNTAC] . . . , which will act with full respect for the national sovereignty o f Cambodia”); id., Art. 12 (elections to be held in neutral political environment “with full respect for the sovereignty o f Cambodia”); Final Act, supra note 33, para. 10 (same). 135 See Explanatory Note, supra note 75, at 35 (“The role o f the United Nations as envisioned in the draft agreement is based upon full respect for the sovereignty o f the Cambodian nation . . .”). 136 1 Daniel Patrick O ’Connell , I nternational Law 332 (1970); see also Helmut Steinberger, Sovereignty, in [Installment] 10 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL Law 397 (Rudolf Bernhardt ed., 1989) (“the most glittering and controversial notion in international law”).

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some content, often associated with a state’s independence.137 Contem porary conceptions have incorporated hum an rights norms, identifying sovereignty with the right of the people of a state to govern themselves through the democratic choice of those who exercise pow er.138 In the Cambodian peace process and the accords, the relevant actors viewed it from the traditional perspective, as asso­ ciated with that aspect of statehood by which a state retains com petence for its internal governance and foreign policy, free from commands o f an outside power (i.e., UNTAC); it thus connoted substantive rights stemming from political inde­ pendence.139 Cambodia’s status in 1991 as a full-fledged member o f the international com­ munity (with concomitant benefits such as UN membership) distinguishes it from other entities said to lack full sovereignty and independence, including colonies, protectorates, League of Nations Mandates, UN T rust Territories and territories for which UN administration was once envisaged.140 In those cases, all o r some of the sovereign power rested with another state, w hether the m etropole, the suze­ rain, or the mandatory or trust pow er.141 The appropriate question thus becomes whether, because of the SNC’s delegation o f authority to UNTAC, Cambodia lost those attributes of statehood and is no longer fully “sovereign.” The retention of Cambodian sovereignty as traditionally viewed can be ap­ praised from a formalistic perspective and a more realistic one. Formally, the linchpin to Cambodian sovereignty lies in the combination o f the Agreem ent’s delegation of power from the SNC to UNTAC and its requirem ent that the Special Representative comply with the “advice” o f the SNC (given unanimously or through Prince Sihanouk) if it is consistent with the settlement. These provisions leave the SNC— the “em bodim ent” of Cambodian sovereignty— with the author­ ity to govern the country should it so choose; the Special Representative “adm in­ isters” Cambodia only because the SNC has so consented and only to the extent

137 See H ans K elsen , P r in cip les of I n t e r n a t io n a l Law 249 (Robert W. Tucker ed., 2d ed. 1966) (means at best that “a state in the sense o f international law is legally subjected only to international law . . . and not to the national law o f another state”); B r o w n lie , supra note 55, at 8 0 -8 1 , 2 8 7 -9 0 (noting various usages, but appearing to endorse equation with independence). For less equivocal views, see 1 Lassa Oppenheim, I n t e r n a t io n a l Law 119 (Hersch Lauterpacht ed., 8th ed. 1955); Clive Parry, The Function o f Law in the International Community, in M a n u a l of P u b lic I n te r n a ­ tional Law, supra note 53, at 13; Mugerwa, supra note 53, at 253; and 1 O ’C o n n e ll, supra note 136, at 284 (equating the two to mean “that the State has plenary but not absolute com petence in international law, unfettered by constitutional constraints o f entities like itself”). But see J. L. B rie r ly , T h e Law of N a tio n s 47 (6th ed. 1963) (“merely a term which designates an aggregate o f particular and very extensive claims that states habitually make for themselves in their relations with other states”); Louis Henkin, International Law: Politics, Values and Functions, 216 R e c u e il DES C ou rs 26 (1989 IV) (“largely unnecessary and better avoided”). See also Johan D. van der Vyer, Sovereignty and Human Rights in Constitutional and International Law, 5 Em ory I n t’l L. Rev. 321, 41 6 -4 1 (1991). 138 See, e.g., W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866 (1990); Anthony D ’Amato, The Invasion o f Panama Was a Lawful Response to Tyranny, id. at 516; Franck, supra note 112. 139 Cf. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 108, para. 205 (June 27) [hereinafter Nicaragua) (sovereignty includes “the choice o f a political, economic, social and cultural system, and the formulation o f foreign policy”). 140 See supra text at notes 6 7 -7 4 . 141 1 O ppenheim , supra note 137, at 1 8 8 -9 6 , 2 1 2 -4 2 ; Kelsen , supra note 137, at 2 5 3 -5 9 ; see also International Status o f South-West Africa, 1950 ICJ Rep . 128, 150 (Advisory Opinion o f July 11) (separate opinion o f Judge McNair) (sovereignty has no application to mandate and trusteeship system).

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that the SNC cannot give him advice or the advice does not further the set­ tlement.142 With respect to UNTAC’s two types o f plenary authority— to overrule the SNC if its advice is inconsistent with the settlement, and to administer the elections— two necessary conditions in the SNC-UNTAC dynamic could be said to preserve Cambodia’s sovereignty. First, UNTAC’s authority is linked to the resolution o f an international conflict. Providing the United Nations with the “final say” on imple­ mentation issues merely inserts an international organization into a conflict to make authoritative decisions about carrying out a solution; its conduct o f elec­ tions is also part o f the settlement, not an assertion of control over a purely internal Cambodian function. UNTAC’s role is thus not fundamentally different from that flowing from a compromis referring a dispute to binding international adjudication, or an agreement to allow inspection of nuclear facilities by the International Atomic Energy Agency and to comply with its findings, neither o f which diminishes a state’s sovereignty. Second, the starting point for the SNCUNTAC relationship is the SNC’s right, in the first instance, to determ ine Cambo­ dian policy. UNTAC may exercise its veto only after the SNC acts and the Special Representative determines it has violated the agreement. This arrangem ent differs from the operation of a protectorate or other less-than-sovereign entity, where the protecting state often wields the “first say” and the “final say” in the country’s affairs. Notwithstanding this casuistic recourse to the accords to justify the preserva­ tion of Cambodian sovereignty, in truth the Agreement grants UNTAC substantial authority over Cambodia if the SNC proves incapable of effective decision mak­ ing.143 The limitations on Cambodia’s domestic and foreign policy may be greater than those imposed on a trust territory or protectorate. But do these constraints on Cambodia exceed those faced by the so-called sovereign states o f Eastern Europe when they formed the Soviet bloc, or any client state in the orbit of another power? The classic view of sovereignty is a slippery road to follow. At best, one can conclude that the United Nations is accorded greater control over Cambodia than it has had over any other member state; but if states that are part of a foreign sphere of influence are regarded as sovereign under the established doctrine, Cambodia should probably be so considered, too. From a contemporary perspective, the formalistic and realistic analyses above may seem, respectively, strained and irrelevant, as they are based on an anachro­ nistic conception o f sovereignty. If sovereignty rests with a state’s people and embraces human rights norms, a string of repressive governments have already 142 The consent o f Cambodia to the creation o f UNTAC alone does not appear sufficient to preserve Cambodia’s sovereignty as that concept is traditionally viewed. For although the entry into a legal obligation is not itself a diminution o f sovereignty, see The Wimbledon (Fr., Italy, Japan, UK v. Ger.), 1923 PCIJ (ser. A) No. 1, at 15, 25 (Aug. 17), and Cambodia retains the competence to terminate the Agreement (albeit in violation o f pacta sunt servanda), the substance o f that obligation could entail loss o f sovereignty. See, e.g., Agreement between the British Government and the Sultan o f Brunei for the Establishment o f a British Protectorate, Sept. 17, 1888, 79 B rit. & F o r e ig n St. Papers 240 (Edward Hertslet ed., 1895) (surrendering independence to the United Kingdom). 143 The structure o f the accords deliberately emphasizes the authority o f UNTAC, based on the assumed impotence o f the SNC. Although the SNC retains, in the first instance, the authority to govern Cambodia, the Agreement, supra note 34, contains a blanket delegation o f authority to UN­ TAC (Art. 6); states UNTAC exercises all powers needed for implementation o f the settlement (Ann. 1, sec. A, para. 1); and refers to the SNC’s views as merely “advice” (Ann. 1, sec. A, para. 2(a)). The argument in the preceding text nevertheless needs to be made to demonstrate to states clinging to old views o f sovereignty that UNTAC’s powers can be reconciled with those views.

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underm ined the sovereignty o f the Cambodian people. The peace accords, by entrusting to UNTAC tasks that foster conditions for Cambodians to exercise their popular will, reverse this trend and start to resurrect Cambodia’s sovereignty. The accords further the global community policy that sovereignty is most effectively established through free and fair elections legitimized by an impartial body. Thus, even a complete delegation of authority to UNTAC, precluding any residual powers for the SNC, would enhance Cambodian sovereignty to the extent that it advanced this goal.144 Improving the Welfare o f Cambodians Human rights. Although resolution of other regional conflicts may require only passing reference to human rights, the horrors o f the Democratic Kampuchean regime and the continued violations by the State o f Cambodia145 necessitated the inclusion of detailed sections on hum an rights in the Agreement. At the behest of the United States and others, human rights became a core element o f the settle­ ment and were reflected in the work of the Paris Conference and the Perma­ nent Five.146 Five sets o f provisions deal with hum an rights in Cambodia. First, Article 15 states that all Cambodians “shall enjoy the rights and freedoms em bodied in the Universal Declaration of H um an Rights and other relevant international hum an rights instrum ents.” Second, Cambodia must ensure respect for hum an rights; support the rights of Cambodians to undertake activities to prom ote hum an rights (primarily by permitting indigenous and foreign hum an rights organizations freely to conduct such activities); take effective measures “ to ensure that the policies and practices of the past shall never be allowed to retu rn ” ; and adhere to “ rele­ vant international human rights instrum ents.” 147 Third, the other signatories agree to prom ote respect for hum an rights in Cambodia.148 Fourth, UNTAC is to implement a human rights education effort, to conduct general hum an rights oversight, and to investigate and act upon hum an rights complaints.149 Finally, the UN Commission on Human Rights should continue to follow Cambodia’s human rights situation, possibly through the appointm ent o f a special rap p o rteu r.150 Negotiating the human rights articles proved delicate for the same reason as did negotiating the sections on electoral participation— the need to attain consensus within the SNC. Although all the participants believed that hum an rights should be mentioned, it was harder to reach consensus on how to express the world’s desire to punish Khmer Rouge officials responsible for the atrocities and to pre144 From the perspective o f popular sovereignty, the consent o f the SNC to UN involvement and the multinational nature o f that effort make Cambodia an easier case to justify than unilateral interven­ tion. See Reisman, supra note 138, at 875. 145 See, e.g., A mnesty I nternational , A mnesty International Report 1987, at 2 3 9 -4 2 (1987) (reports o f imprisonment without trial, torture, and unfair trials). 146 See Comm. II Rep., supra note 23; Framework Document, supra note 28, paras. 2 4 -2 9 . 147 Comprehensive Settlement Agreement, supra note 34, Art. 15(2)(a). See also supra note 15 (origin o f the “non-return” phrase). 148 Comprehensive Settlement Agreement, supra note 34, Art. 15(2)(b). 149 Id., Art. 16 and Ann. 1, sec. E. 150 Comprehensive Settlement Agreement, supra note 34, Art. 17. See, e.g., Commission on Human Rights, Report on the Forty-seventh Session, 1991 UN ESCOR, Supp. No. 2, at 9 -1 3 , UN Doc. E /1 9 9 1 /2 2 -E /C N .4 /1 9 9 1 /9 1 (special rapporteurs, experts, and special representatives examining particular human rights issues or countries).

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vent the repetition of these acts. As a result, the human rights obligations at times appear opaque. Most notable here is the term “other relevant human rights instrum ents.” Al­ though it does not encompass the full set of human rights conventions and decla­ rations, it logically refers to those pertinent to Cambodia in light of its tragic history, such as the International Covenants on Civil and Political Rights151 and on Economic, Social, and Cultural Rights,152 and the International Convention on the Elimination of All Forms of Racial Discrimination.153 Most important, though the need to garner a consensus prevented it from being named in the Agreement, the phrase includes the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.154 The Convention, to which Cambodia is a party, makes genocide a crime under international law and obliges parties to enact laws against genocide and to try persons charged with genocidal acts within their territory.155 The extent and nature of the Khmer Rouge atrocities is now so well docum ented that legal scholars, as well as the U.S. Government, believe that they included genocide.156 Prior to the settlement, a variety of proposals for legal action, e.g., in an inter­ national criminal tribunal or the International Court o f Justice, charging the Khmer Rouge with genocide and other offenses received public attention.157 Most participants in the negotiations, however, preferred to place responsibility for prosecuting Khmer Rouge leaders upon the future government of Cambodia. The Agreement embodies this policy, as trial of Khmer Rouge officials is not within UNTAC’s mandate. Rather, in requiring Cambodia to “adhere to relevant human rights instrum ents,” the accords commit Cambodia to fulfilling its duties under the Genocide Convention by prosecuting those accused o f genocide.158 151 ICCPR, supra note 119. 152 Dcc. 16, 1966, 993 UNTS 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]. Cambodia acceded to the ICCPR and the ICESCR on May 26, 1992. Telephone confirmation from United Nations Office o f Legal Affairs, Treaty Section (July 2, 1992). 153 Opened fo r signature Mar. 7, 1966, 660 UNTS 195, reprinted in 5 ILM 352 (1966). See also Second Progress Report o f the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S/2 4 5 7 8 , at 3 (1992) [hereinafter Second Progress Rep.] (listing other human rights conventions to which the SNC has agreed to accede). 154 Dec. 9, 1948, 78 UNTS 277 [hereinafter Genocide Convention]. 155 Id., Arts. I, V, VI, 78 UNTS at 2 8 0 -8 2 . The Convention defines genocide as any o f the following committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members o f the group; (b) Causing serious bodily or mental harm to members o f the group; (c) Deliberately inflicting on the group conditions o f life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children o f the group to another group. 156 See Hurst Hannum, International Law and Cambodian Genocide: The Sounds of Silence, 11 Hum. Rts. Q. 82 (1989); Vietnam Hearing, supra note 24, at 139 (State D ep’t position). 157 See Hannum, supra note 156, at 9 4 -1 0 1 ; Kathryn Railsback, A Genocide Convention Action Against the Khmer Rouge: Preventing a Resurgence of the K illin g Fields, 5 Co n n . J. In t ’l L. 457 (1990); Jim Leach, Don't Help Pol Pot. Try Him, N.Y. T imes, Sept. 27, 1989, at A29; Vietnam Hearing, supra note 24, at 123 -3 6 (State D ep’t assessment o f proposals). 158 The distinction between “adhering to” and “complying with” the relevant human rights instru­ ments appears more cosmetic than legally substantive in light o f the dictates o f pacta sunt servanda. Prince Sihanouk has announced his desire to have such trials. N.Y. T imes , Nov. 17, 1991, at A18. See also W ash . Post , Oct. 24, 1991, at A l, A42 (U.S. Secretary o f State supports prosecution by new Cambodian government).

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UNTAC’s role in protecting hum an rights is important, as it centralizes hum an rights monitoring and prom otion in the United Nations. The A greem ent inte­ grates human rights into the conditions necessary for free and fair elections, entrusts hum an rights functions to the entity charged with implementing the settlement, and lays some groundwork for the institutionalization of hum an rights awareness after the elections.159 Constitutional principles. The Comprehensive Settlement Agreem ent also in­ cludes an annex that enum erates six basic principles for the constitution o f Cam­ bodia to be drafted by the constituent assembly chosen by the elections. The annex is drawn from a 1982 proposal o f the five-state “ Contact G roup” that prepared recommendations for Namibia’s transition to independence.160 It states that the constitution: (1) will be the supreme law o f the land; (2) will contain a declaration of human rights;161 (3) will declare Cambodia’s status as a neutral country; (4) will state that Cambodia will adhere to a system o f “ liberal dem oc­ racy,” providing for periodic elections governed by universal suffrage, full partici­ pation and secret balloting; (5) will create an independent judiciary; and (6) will be adopted by two-thirds of the constituent assembly.162 Like the constitutional principles prepared for Namibia, these provisions o f the Agreement transcend existing international hum an rights instruments. They go beyond recognizing free elections as the sole process for choosing a government after internal strife, and beyond committing the elected regime to guaranteeing the human rights of its people, by identifying the path— labeled “liberal democ­ racy, on the basis of pluralism”— it is to follow. The Agreement thereby estab­ lishes the political foundation o f a government able to protect hum an free­ doms.163 Moreover, it incorporates this principle for internal governance in an

159 The United Nations is performing a similar function through the United Nations Observer Mission in El Salvador. See SC Res. 693 (May 20, 1991) (establishing the observer mission); Central America: Efforts Towards Peace, Report o f the Secretary-General, UN Doc. S /2 2 4 9 4 (1991) (man­ date o f mission’s human rights component). 160 Namibia Principles, supra note 129. See also Report of the Co nstitutional Conference H eld at Lancaster H ouse , Lo n d o n , S eptember- D ecember 1979, reprinted in 19 ILM 387, 388 (1980) (proposal for Zimbabwe’s independence constitution). See also Report o f the Secretary-General on the International Conference on the Former Yugoslavia, UN Doc. S /2 4 7 9 5 , at 45 (1992) (proposed constitutional structure for Bosnia-Hercegovina). 161 The list o f rights is as follows: right to life, personal property, security, freedom o f movement, freedom o f religion, assembly and association including political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation o f property or deprivation o f private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination. Comprehensive Settlement Agreement, supra note 34, Ann. 5, para. 2. In addition, the human rights declaration will prohibit retroactive application o f the law and entitle individuals to access to the courts to adjudicate their rights. Id. Although elaboration o f the content o f these rights is beyond the scope o f this article, they generally restate those in the Universal Declaration o f Human Rights, supra note 119, and the International Covenant on Civil and Political Rights, supra note 119. 162 Comprehensive Settlement Agreement, supra note 34, Ann. 5; see also Comprehensive Settle­ ment Agreement, Art. 23. 16S See Nayan Chanda, C ivil War in Cambodia?, Foreign Po l ’y , Fall 1989, at 26, 37 (noting Sihanouk’s call during earlier negotiations for Cambodia to be a liberal democratic state). With regard to governmental structure, the Agreement calls for the legislative assembly to “create” or “form ” the new government. Comprehensive Settlement Agreement, supra note 34, Art. 12 and Ann. 3, para. 1. Compare Namibia Principles, supra note 129, at 13 (executive branch “responsible” to legislature).

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agreement resolving a regional conflict, and thus places an international obliga­ tion on Cambodia to observe it and on the other signatories to respect it.164 Refugees and displaced persons. The great human upheaval created by years of strife in Cambodia is addressed in the sections on refugees and displaced persons, who numbered nearly 370,000 at the time of the signing of the accords. They fall into two classes: approximately 14,000 persons eligible for refugee status under international law,165 living in a camp in Thailand under the supervision o f the United Nations High Commissioner for Refugees; and over 350,000 “displaced persons,” Cambodians not granted refugee status in Thailand, who have lived since the early 1980s in camps controlled by the factions and assisted by the United Nations Border Relief O peration.166 The Agreement grants both groups “the right to return to Cambodia and to live in safety, security and dignity, free from intimidation or coercion of any kind,” 167 and describes in an annex the guidelines and principles for their return. This annex is based heavily upon that part of Committee I l l ’s 1989 report to the Paris Conference that was devoted to refugees, one of the few matters on which that session achieved near­ consensus.168 Former refugees and displaced persons shall be free to move within Cambodia, choose their place of residence and work, and own property; moreover, repatria­ tion, while commencing as soon as possible, must remain voluntary and take account of the conditions in Cambodia. As an operational m atter, the United Nations High Commissioner for Refugees was given chief responsibility by the Secretary-General for coordinating the intergovernmental aspects o f the repatria­ tion. The Agreement requires that the High Commissioner and other agencies be given access to refugees and displaced persons and encourages the international community to provide repatriation assistance.169 The Agreement does not discuss persons within Cambodia displaced from their homes by the fighting (numbering from 150,000 to 200,000), although it is within UNTAC’s broad mandate to assist these people as well. Final Provisions Several of the Final Provisions of the Agreement merit attention.170 In Articles 25, 26, 27 and 28, the signatory states agree to comply in good faith with the agreement and to resolve any disputes through peaceful means. They also under­ take to cooperate fully with UNTAC, including through the provision o f privileges and immunities171 and information, and request that other states do the same. To 164 See Franck, supra note 112, at 90 -9 1 (emerging norm regarding process for legitimation o f governments). 165 See Protocol Relating to the Status o f Refugees, Jan. 31, 1967, Art. 1(2), 19 UST 6223, 6225, 606 UNTS 267, 268 (definition o f refugee based on Art. 1(A) o f the Convention Relating to the Status o f Refugees, July 28, 1951, 189 UNTS 150, 152). 166 See Valerie O. S utter, T he I ndochinese Refugee D ilemma 7 5-81 (1990). 167 Comprehensive Settlement Agreement, supra note 34, Art. 20. 168 Comm. I ll Rep., supra note 23, at 6. 169 Comprehensive Settlement Agreement, supra note 34, Ann. 4. 170 Other articles that merit mention are Article 18, which restates the essential commitments o f the Guarantees Agreement, supra note 35, discussed in part III infra, and Article 24, which “urge[s]” international support for Cambodia’s reconstruction, discussed in part IV infra. 171 The United Nations attempts to conclude status-of-forces agreements for all its peacekeeping missions. See, e.g., Exchange o f Letters Constituting an Agreement Concerning the Status o f United

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respond to the concerns of Cambodia’s neighbors about the scope o f UNTAC’s operations, Article 27 also states that UNTAC “shall exercise due respect for the sovereignty of all States neighboring Cambodia.” Near the end of the Agreement is Article 28(2), which states: “The signature on behalf of Cambodia by the members o f the SNC shall commit all Cambodian parties and armed forces to the provisions o f this A greem ent.” This apparently unexceptionable sentence serves two purposes: First, it confirms the SNC’s legal ability to make commitments for the factions represented on it and clarifies that the signature of an SNC member binds the forces controlled by his faction. Sec­ ond, it addresses those “Cambodian parties and armed forces” not included in the SNC. For example, the arm ed forces o f the Khmer People’s National Libera­ tion Front, known as the Khmer People’s National Liberation Arm ed Forces, have often operated free of the fro n t’s control.172 The statem ent reiterates the SNC’s competence to obligate all o f Cambodia internationally. Legally, however, the sentence is inconsequential: if the SNC is the unique legitimate source o f au th o r­ ity in Cambodia and alone is authorized to conclude these accords, then all Cam­ bodian forces must comply, regardless o f what else is stated in the A greem ent.173 The Final Provisions include a mechanism for responding to violations o r threatened violations of the Agreement. Article 29 calls for the co-chairmen o f the Paris Conference, France and Indonesia, “upon the request o f the SecretaryGeneral, . . . [to] undertake appropriate consultations, including with members o f the Paris Conference on Cambodia, with a view to taking appropriate steps” ; this consultation mechanism is without prejudice to the “prerogatives o f the Secu­ rity Council.” The use of consultations is typical o f regional peace accords,174 although it highlights the disinclination o f the international community to commit itself legally to more concrete remedies for violations. The consultative process seems appropriate for Cambodia, as it acknowledges both the authority o f the Security Council and the chain of command within the United Nations (from the Special Representative to the Secretary-General to the Security Council), but also admits the possibility o f a role for the states in the Paris Conference if the Secretary-General so requests. In practice, the Security Council, as the organ that created UNTAC, is more likely than the Paris Conference states to consider re­ ports o f violations from the Secretary-General. The Agreem ent refrains from elaborating the “prerogatives” o f the Security Council, but they surely include recourse to chapter VII. The participation o f the conference states requires a prior request by the Secretary-General to the co-chairmen, but this course seems inevitable if the Special Representative informs him that a m atter requires interna­ tional attention. Placing the responsibility to commence the consultations on France and Indonesia preserves a leadership position for those two states, as the originators o f the Paris peace process, throughout the execution o f the set­ tlement.

Nations Peace-Keeping Force in Cyprus, Mar. 31, 1964, UN-Cyprus, 492 UNTS 57; D erek W. BowU nited N ations Forces : A Legal Study 4 3 2 -5 5 (1964). 172 See Cambodia : A Country Study , supra note 2, at 2 0 6 -0 7 (independence o f liberation forces commander Sak Sutsakhan from Son Sann). 175 Cf. Vienna Convention on the Law o f Treaties, supra note 38, Art. 27, 1155 UNTS at 339 (internal law not a justification for breach o f international obligations). 174 See, e.g., Declaration on the Neutrality o f Laos, July 23, 1962, Art. 4, 14 UST 1104, 1107, 456 UNTS 301, 304; Act o f the International Conference on Viet-Nam, Mar. 2, 1973, Art. 7, 24 UST 486, 489, 935 UNTS 40 5 , 408. ett ,

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III. T h e A g r e e m e n t C o n c e r n i n g t h e S o v e r e i g n t y , I n d e p e n d e n c e , T e r r it o r ia l I n t e g r it y a n d I n v io l a b il i t y , N e u t r a l it y a n d N a t io n a l U n it y o f C a m b o d i a

The second international agreement signed in Paris is the “ Guarantees Agree­ m ent,” known formally as the Agreement Concerning the Sovereignty, Independ­ ence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia. The Guarantees Agreement sets forth legal undertakings o f Cambodia and the other Paris Conference states lasting beyond the transitional period. As early as 1979, the General Assembly, in its first annual resolution on Cam­ bodia, stated that the International Conference on Kampuchea should seek guar­ antees against the introduction of foreign forces into Cambodia, guarantees to respect the sovereignty, independence and territorial integrity o f Cambodia, and guarantees that Cambodia would not be a threat to its neighbors.175 The mandate of the Paris Conference included reaching an agreement “guaranteeing [Cambo­ dia’s] sovereignty, territorial integrity and neutrality.” 176 The Perm anent Five also discussed international guarantees, devoting a section of the Framework Docu­ ment to that subject.177 But what is meant by “guarantees” ? The Guarantees Agreement never uses the word. Taken literally, a treaty that guaranteed a certain outcome— w hether the status of a state or certain action to be taken— would require the parties to take all action necessary to bring about the intended result.178 Even such a commitment would not guarantee the outcome or that the parties would do everything in their power to attain it. Although states formerly entered into treaties o f guarantee,179 the notion as employed today describes a set o f legal commitments that, if ob­ served uniformly by all parties, would ensure a certain result; these commitments are typically coupled with pledges to respond in some way (even if only through consultations) to violations.180 It is in this sense that the Cambodia Guarantees Agreement is so called. 175 GA Res. 3 5 /6 , supra note 12, para. 3. See also JIM II Statement, supra note 19, at 5. 176 See text at and notes 2 1 -2 2 supra. 177 Framework Document, supra note 28, paras. 3 1 -3 6 . 178 See 1 O ppenheim , supra note 137, at 964 (treaties o f guarantee are “conventions by which one o f the parties engages to do what is in its power to secure a certain object to the other party”). 179 See id. at 965 8c nn. 4 -6 (citing treaties o f guarantee). For an unusual contemporary case o f a classic guarantee, see SC Res. 687, para. 4 (Apr. 3, 1991) (Security Council li[d]ecides to guarantee the inviolability” o f the Iraq-Kuwait boundary and “take as appropriate all necessary measures to that end” in accordance with the Charter). See also Treaty o f Peace with Italy, supra note 66, Art. 2 1 ,6 1 Stat. at 1380, 49 UNTS at 137 (Trieste’s “integrity and independence shall be assured by the Security Council o f the United Nations”); Draft Statute for Jerusalem, supra note 69, Art. 6, at 4 (Jerusalem’s “ territorial integrity and . . . the special regime . . . shall be assured by the United Nations”); Treaty o f Guarantee, Aug. 16, 1960, Arts. II, IV, 382 UNTS 3, 4, 6 (Greece, Turkey and United Kingdom “ recognise and guarantee the independence, territorial integrity and security o f the Republic o f Cyprus, and also the state o f affairs established by the Basic Articles o f its Constitution,” and each “ reserves the right to take action with the sole aim o f re-establishing the state o f affairs created by the present Treaty”). 180 See Declaration on International Guarantees, Apr. 14, 1988, U.S.-USSR, 27 ILM 584 (1988) (“guarantors” o f Afghanistan peace accords agree to refrain from interference and respect commit­ ments between Pakistan and Afghanistan); State Treaty for the Re-establishment o f an Independent and Democratic Austria, May 15, 1955, 6 UST 2369, 217 UNTS 223 (United States, USSR, France and Great Britain agree to respect Austria’s January 1, 1938 borders) [hereinafter Austria State Treaty]. Neither o f these agreements used the word “guarantee” in its operative language. See also Memorandum o f Agreement, Mar. 26, 1979, U.S.-Isr., para. 2, 32 UST 2141, 2143; letters from President Carter to Prime Minister Begin and President Sadat, Mar. 26, 1979, id. at 2146, 2148 (U.S.

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The key precedent and model for the Guarantees Agreem ent was the 1962 Declaration on the Neutrality of Laos, concluded at the International Conference on the Settlement of the Laotian Q uestion.181 The declaration incorporated a unilateral statement by the Government o f Laos regarding its status and then listed obligations of the other conference states to recognize and respect that status. The Cambodian Guarantees Agreem ent contains comparable commit­ ments but, by including Cambodia as a party, clarifies their reciprocal nature. The Agreement covers three subjects: the future status o f Cambodia, hum an rights and enforcem ent of obligations.

Cambodia's Future Status The principal obligations of the Agreement, contained in Articles 1(1) and 2(1), are that Cambodia will “maintain, preserve and defend,” and the other parties will “recognize and respect in every way,” Cambodia’s “sovereignty, independ­ ence, territorial integrity and inviolability, neutrality, and national unity.” These twin undertakings restate basic norms of international law applicable to all states and assign a unique status— perm anent neutrality— to Cambodia. Behind this seemingly unassailable language lie im portant and divisive issues unique to the Cambodian context.

Sovereignty, independence, territorial integrity and inviolability, and national unity. The obligations relating to sovereignty, independence and territorial integ­ rity incorporate familiar terms associated with statehood un d er customary interna­ tional law. Article 2(4) of the UN C harter codifies the concepts o f territorial integrity and independence; Article 2(1) speaks o f the United Nations as based on the “sovereign equality” of all members, which the Friendly Relations Declaration elaborates as including “full sovereignty” (a loose concept, as we have seen).182 Although these commitments engender no new obligations for Cambodia o r the other signatories, they underscore the policy o f the international community that Cambodia should no longer be a target of foreign aggression. Inviolability is less familiar as a principle governing interstate relations un d er the Charter. It appears to include no rights beyond those associated with territo ­ rial integrity, although it emphasizes that borders may be changed only by agree­ m ent.188 By analogy with diplomatic law, where inviolability is an established doc-

undertakings to Israel and Egypt to consult and take “appropriate” action to ensure compliance with Egypt-Israel peace treaty, often considered a U.S. guarantee o f the treaty). 181 See supra note 174; see also John J. Czyzak Sc Carl F. Salans, The International Conference on the Settlement o f the Laotian Question and the Geneva Agreements o f 1962, 57 AJIL 300 (1963). 182 Declaration on Principles o f International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter o f the United Nations, Principle 6, para. 2(b), GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, 124, UN Doc. A /8 0 2 8 (1970) [hereinafter Friendly Relations Declaration]. See supra text at notes 133-44. 185 See SC Res. 687, supra note 179, para. 4 (guaranteeing “ the inviolability o f the [Iraq-Kuwait] international boundary”); Final Act o f the C onference on Security and Co-operation in Europe, supra note 41, para. l(a)(III), 14 ILM at 1294 (states “regard as inviolable all one another’s frontiers as well as the frontiers o f all states in Europe”); Treaty o f Peace, Mar. 26, 1979, Egypt-Isr., Art. II, 18 ILM 362, 363 (1979) (“The parties recognize th[e international] boundary as inviolable.”); see also Friendly Relations Declaration, supra note 182, Principle 1, para. 4, at 122 (“Every state has the duty to refrain from the threat or use o f force to violate the existing international boundaries o f another State . . .”).

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trine,184 it may stress that physical intrusion across a border, for whatever purpose or to whatever degree, is prohibited. Its usage reinforces the notion o f territorial integrity, which proved to be especially im portant to the Cambodian resistance factions because o f the Vietnamese invasion and a longstanding, violent border dispute between Cambodia and Vietnam. Although the contested areas are small, resistance leaders have repeatedly cited them as evidence o f Vietnamese territorial ambitions, especially in the wake of treaties between Vietnam and the PRK that claimed to have settled the issue.185 During the 1989 Paris Conference, the resist­ ance sought recognition of particular borders for Cambodia, but these were not determined in the accords.186 Use o f the term “ national unity” or “unity,” also present in the 1954 Geneva accords,187 the 1962 Laos Declaration,188 and the 1973 Vietnam agreements,189 affirms the need fo r a Cambodia without divisions based on factional control, as prevails now. Neutrality. The obligations concerning Cambodia’s neutrality form the center­ piece o f the status sections of the Agreement, conferring upon Cambodia a spe­ cial position in international law, that of the permanently neutral state. Such states agree by treaty forever to refrain from the use o f force against other states, except in self-defense, and to avoid any international obligations that could lead to the use of force, in exchange for a commitment by other, usually m ore power­ ful, states to respect their independence and territorial integrity.190 States and territories that were or are neutralized by international agreement include Switz­ erland,191 Belgium,192 Luxem bourg,193 the Aaland Islands,194 Laos195 and the Pan184 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Arts. 22, 24, 27(2), 29, 30, 23 UST 3227, 3 2 3 7 -4 0 , 500 UNTS 95, 106, 108, 110; see B iswanath S en , A D iplomat’s H andbook of International Law and Practice 1 0 7 -2 6 (3d ed. 1988). 185 See text at and note 209 infra; see also Cambodia : A Country Study , supra note 2, at 2 6 2 -6 3 . 186 Comm. II Rep., supra note 23, at 10 (proposing insertion o f reference to border purportedly recognized internationally on March 17, 1970, the day before the overthrow o f Sihanouk by General Lon Nol). 187 Declaration by the Government o f the French Republic, supra note 5, 935 UNTS at 103; Geneva Conference on the Problem o f Restoring Peace in Indo-China, Final Declaration, supra note 6, para. 12, 935 UNTS at 9 7 -9 9 . 188 Declaration on the Neutrality o f Laos, supra note 174, Arts. 1, 2(a), 3, 4, 14 UST at 1 1 06-07, 456 UNTS at 3 0 3 -0 4 . 189 Agreement on Ending the War and Restoring Peace in Viet-Nam, supra note 93, Art. 20, 24 UST at 19, 935 UNTS at 61; Act o f the International Conference on Viet-Nam, supra note 174, Arts. 2, 4, 5, 7(a), 24 UST at 4 8 7 -8 9 , 935 UNTS at 4 0 6 -0 8 . See also GA Res. 4 6 /1 8 2 , Annex, para. 1.3 (Apr. 14, 1992) (noting on guiding principles for UN humanitarian assistance that “the sovereignty, territorial integrity, and national unity o f States must be fully respected”); GA Res. 1474, para. 3, UN GAOR, 4th Emergency Spec. Sess., Supp. No. 1, at 1, UN Doc. A /4 5 1 0 (1960) (calling upon C ongo­ lese to seek a solution “for the unity and integrity o f the C ongo”). 190 See 1 O ppenheim , supra note 137, at 243; see also Krzysztof J. Skubiszewski, Use o f Force by States. Collective Security. Law o f War and Neutrality, in Manual of Public International Law , supra note 53, at 843. 191 Declaration respecting the Affairs o f the Swiss Confederation, Mar. 20, 1815, 64 Consol. TS 5. 192 Treaty for the Definitive Separation o f Belgium from Holland, Nov. 15, 1831, Art. 7, 82 Consol. TS 255, 259. 193 Treaty relative to the Grand Duchy o f Luxembourg, May 11, 1867, Art. II, 135 Consol. TS 1 ,4 . 194 Convention Relating to the Non-Fortification and Neutralisation o f the Aaland Islands, Oct. 20, 1921, 9 LNTS 213. 195 Declaration on the Neutrality o f Laos, supra note 174, Art. 1, 14 UST at 1106, 456 UNTS at 303.

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ama Canal;196 Austria197 and Malta198 are neutral pursuant to unilateral declara­ tions recognized by other states. The annual UN resolutions on Cambodia and the Paris Conference’s mandate identified Cambodian neutrality as an essential part o f an overall settlem ent.199 The importance o f neutrality derived from the age-old rivalries in Southeast Asia: a neutral buffer state between Vietnam and Thailand — beholden to neither Vietnam nor China— would allay Thai fears of Viet­ namese expansion while mollifying the concerns o f Vietnam about a pro-Chinese neighbor.200 The Agreem ent’s detailed commitments o f Cambodia and the other signatories affirm and codify the m odem contours of perm anent neutrality. Cambodia agrees to refrain from entering into military alliances, without prejudice to its right to acquire military equipment for self-defense and law and order; to refrain from interfering in the internal affairs o f other states; to term inate treaties incompati­ ble with its neutral status; to refrain from using its own o r other states’ territory to impair the sovereignty, independence, territorial integrity o r inviolability o f other states; and to refrain from allowing foreign forces and bases on its soil, except as approved by the United Nations to implement the settlem ent.201 In addition, the Agreement generally restates the obligations o f Article 2(3) and (4) o f the UN C harter regarding peaceful settlement of disputes and non-use o f force.202 The other states undertake reciprocal obligations toward Cambodia, and all parties call upon third states to recognize and respect its status as defined in the Agreement.203

196 Treaty Concerning the Permanent Neutrality and Operation o f the Panama Canal, Sept. 7, 1977, 33 UST 1, 1161 UNTS 177. 197 The Government o f Austria requested and received recognition by other states o f Austria’s perpetual neutrality as codified in its domestic law. See, e.g., Exchange o f Notes between the Ambassa­ dor o f Austria and the Secretary o f State, reprinted in Co uncil on Foreign Relations , D ocuments o n American Foreign Relations 1955, at 1 6 2 -6 3 (Paul E. Zinner ed., 1956). Although such unilat­ eral statements may have legal implications, see Alfred P. Rubin, The International Legal Effects of Unilateral Declarations, 71 AJIL 1 (1977), Austria’s only treaty obligation regarding its neutrality extends to the Soviet Union, with which it agreed to make a declaration o f permanent neutrality. See Memorandum Concerning the Results o f the Conversations between the Government Delegation o f the Republic o f Austria and the Government Delegation o f the Soviet Union, reprinted in 32 D ep ’t St . B ull . 1011 (1955). The Austria State Treaty, supra note 180, does not contain a multilateral commit­ ment regarding Austria’s neutrality, but only its independence and territorial integrity. See also Josef L. Kunz, Austria's Permanent Neutrality, 50 AJIL 418 (1956). 198 Declaration by the Government o f Malta concerning the Neutrality o f Malta, May 15, 1981, reprinted in 21 ILM 397 (1982). Malta’s neutrality has been recognized by Italy, Declaration by the Government o f the Republic o f Italy with Respect to the Neutrality o f Malta, reprinted in UN Doc. A /3 6 /3 4 8 (1981), and France, N ote Verbale dated 1 March 1982 from the Permanent Mission o f France to the United Nations addressed to the Secretary-General, UN SCOR, 37th Sess., Supp. for Jan.-Mar. 1982, at 34, UN Doc. A /3 7 / 1 0 5 - S / l 4892 (1982). See also 1 O ppenheim , supra note 137, at 2 4 3 -4 4 n.2 (cases o f “self-neutralization”). 199 See, e.g., GA Res. 4 3 /1 9 , supra note 15; PCC Mandate, supra note 21. See also Agreement on Ending the War and Restoring Peace in Viet-Nam, supra note 93, ch. VII, 24 UST at 19, 935 UNTS at 61 (calling for respect for Cambodia’s neutrality). 200 See generally C handa , supra note 7, at 1 0 8 -3 5 , 3 8 0 -8 1 ; see also F ranck , supra note 74, at 159 (preference o f Non-Aligned Movement to use neutralization as basis for solving conflicts). 201 Guarantees Agreement, supra note 35, Art. l(2)(a)-(d), (g)-(h). 202 Id., Art. l(2)(e)-(f). 205 Id., Arts. 2, 4. Cambodia’s obligation not to use its territory or other states’ territories for actions against third states, id., Art. l(2)(g), is paralleled by twin obligations by the other signatory states— (1) not to use their territories or other states’ territories for actions against Cambodia, id., Art. 2(2)(e), and (2) not to use Cambodian territory for actions against third states, id., Art. 2(2)(f).

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The Agreement lacks any provision making Cambodia a “non-aligned” state. Although Cambodia has been a member of the Non-Aligned Movement since 1961,204 and the annual General Assembly resolutions spoke o f the need for a settlement that respected Cambodia’s “non-aligned status,”205 the term was not included in the mandate of the Paris Conference or the peace accords. Some nonaligned delegations at the first session o f the Paris Conference believed that membership should be enshrined in the Guarantees Agreement, but other states, including the United States and the United Kingdom, objected to the incorpora­ tion in a legal obligation of a term they regarded as referring only to membership in an intergovernmental organization.206 Its omission helps to avoid conferring legal value on an increasingly murky political affiliation.207 Most of these neutrality-related commitments require Cambodia to continue its general policy of noninterference in the affairs o f other states. (Cambodia, after all, has usually been the victim, not the initiator, o f aggressive activity.) Three o f the obligations, however, may well impel Cambodia to adjust its foreign policy either immediately or after the installation o f the elected government: to refrain from military alliances, to term inate treaties incompatible with its neutral status, and to keep foreign troops off its soil. After the Vietnamese takeover in 1979, the PRK and Vietnam concluded a Treaty o f Peace, Friendship and Cooperation, which, while conceivably on its face does not deviate from neutrality, is tantam ount to a military alliance.208 Similarly, the two governments signed a treaty delimiting their disputed land frontier in a m anner favorable to Vietnam,209 which may impair Cambodia’s territorial integ­ rity and inviolability. Under the Vienna Convention on the Law of Treaties, both of these treaties should be deemed null and void ab initio, as procured by the threat or use of force in response to the Vietnamese invasion.210 Although the Agreement may require Cambodia to term inate these treaties— and perhaps addi­ tional agreements with Vietnam and other form er Soviet-bloc states— Cambodia need not renounce all types of political cooperation, for example future m em ber­ ship in ASEAN. The ban on foreign forces, requiring Cambodia to ensure the removal of any remaining Vietnamese troops and advisers, underlines a similar obligation in the Comprehensive Settlement Agreem ent.211

This last obligation is o f special importance to Thailand, which saw Vietnamese soldiers, in pursuit o f Cambodian resistance forces, cross into its territory and fight with Thai troops. See, e.g., Elizabeth Becker, Kampuchea in 1983: Further from Peace, 24 A sian Surv . 37 (1984). 204 See R ichard L. J ackson, T he N o n -A ligned , the UN and the Superpowers 279 (1983). 205 See, e.g., GA Res. 4 3 /1 9 , supra note 15; see also JIM II Statement, supra note 19, at 2. 206 See Comm. II Rep., supra note 23, at 1 (placing “non-alignment” in brackets in draft agree­ ment). 207 Jackson , supra note 204, at 4 -8 . 208 Feb. 18, 1979, Art. 2, 18 ILM 394, 395 (1979) (parties “undertake to whole-heartedly support and assist each other in all domains . . . in order to strengthen . . . each country against all schemes and acts o f sabotage by the imperialist and international reactionary forces”); Art. 5, id. (attaching “great importance to the long-standing tradition o f militant solidarity and fraternal friendship be­ tween the Kampuchean, Lao and Vietnamese peoples”). 209 National Border Delimitation Treaty, Dec. 27, 1985 (text not available to the author). See Nayan Chanda, Land Erosion: Cambodians Question Status o f Country's Borders, Far E. Eco n . Rev., Sept. 3, 1992, at 16, 17 (citing U.S. Dep’t o f State review concluding that 1985 treaty awards nearly all o f disputed territory to Vietnam). See also K R Demand R edrawing o f Border with SRV, FBIS, E. A sia D a ily Rep., Aug. 24, 1992, at 30 (citing statement o f Khmer Rouge leader Khieu Samphan insisting that all PRK-Vietnam border treaties be declared null and void). 210 Vienna Convention on the Law o f Treaties, supra note 38, Art. 52, 1155 UNTS at 344. 211 See text at and notes 90 -9 1 supra.

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The Guarantees Agreement obliges other actors in the Cambodian conflict to modify their behavior as well. They, too, must engage in the withdrawal o f troops from Cambodia, as well as cease providing military assistance to the factions and terminate treaties inconsistent with Cambodia’s neutral status. Noninterference. The latter states must furtherm ore “refrain from interference in any form whatsoever, w hether direct o r indirect, in the internal affairs of Cambodia.”212 This incantation derives from well-known interpretations of the Charter.213 Interference, of course, may refer to both arm ed intervention and nonforcible interference. Insofar as other sections o f the accords ban armed intervention, and it is regarded in most circumstances as a violation o f the Charter,214 the immediate interpretive question concerns the permissibility of nonforcible interference under customary international law215 and the Agreement. Appraisal o f the lawfulness of such interference arises u nder three scenarios in which nonmilitary support (overt or covert) is directed to Cambodia from abroad: assistance to UNTAC, to the SNC, and to the factions. Aid to UNTAC must be judged lawful because UNTAC’s presence in Cambodia is lawful.216 Assistance to the SNC is also permissible because of its status as the external representative o f Cambodia. Moreover, as its competence extends to receipt o f assistance on behalf o f Cambodia, nonmilitary support for the SNC is equally appropriate as typical aid to a foreign government.217 Assistance to the factions, however, raises fundam ental questions about the legality o f nonforcible intervention under customary international law, the norms o f which remain ill-defined.218 Nevertheless, the Paris accords provide some guide-

2,2 Guarantees Agreement, supra note 35, Art. 2(2)(b). 2,8 See Friendly Relations Declaration, supra note 182, Principle 3, at 123; Declaration on the Inadmissibility o f Intervention in the Domestic Affairs o f States and the Protection o f Their Independ­ ence and Sovereignty, GA Res. 2131, UN GAOR, 20th Sess., Supp. No. 14, at 11, UN Doc. A /6 0 1 4 (1965). 2.4 See supra note 213. See also Nicaragua, 1986 ICJ Rep . at 108, para. 205 (intervention wrongful “when it uses methods o f coercion,” which “is particularly obvious in the case o f an intervention which uses force”); Rosalyn Higgins, Intervention and International Law, in I ntervention in World P olitics 3 6 -3 8 (Hedley Bull ed., 1984). The lawfulness o f forcible intervention under exceptional circumstances, such as humanitarian intervention or assistance to those fighting repressive regimes, is beyond the scope o f this article, but would require assessment if the human rights situation in Cambo­ dia significantly deteriorated. For a recent review o f the positions on this issue, see Law and Force in the N ew I nternational O rder 1 4 3 -2 2 3 (Lori F. Damrosch 8c David J. Scheffer eds., 1991) and sources cited therein. See also Gary Klintworth , V ietnam ’s I ntervention in Cambodia in I nter ­ national Law 4 1 -8 4 (1989) (justifying 1978 invasion as humanitarian intervention). 2.5 For a complete treatment o f this subject, see Lori F. Damrosch, Politics Across Borders: Nonin­ tervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1 (1989). 2.6 See supra note 59. 2.7 See Nicaragua, 1986 ICJ Rep . at 126, para. 246 (“intervention . . . is already allowable at the request o f the government o f a State”). However, the legality o f assistance to the SNC under U.S. law is more complex. See Foreign Operations, Export Financing, and Related Appropriations Act, 1991, Pub. L. No. 101-513, sec. 562A, 104 Stat. 1979, 2037 (prohibiting funds for any organization “coop­ erating, tactically or strategically, with the Khmer Rouge in their military operations” and incorporat­ ing similar ban from the International Security and Development Cooperation Act o f 1985, supra note 96, sec. 906). 2.8 See Damrosch, supra note 215, at 8 -1 2 (noting lack o f consensus among drafters o f Friendly Relations Declaration). The ICJ’s rather broad brush strokes on the issue in the Nicaragua case, 1986 ICJ R ep . at 109, para. 209 (“no such general right o f intervention, in support o f an opposition within another State, exists in contemporary international law”), even if correct, is not applicable to the unique context o f Cambodia, where no faction can now be regarded legally as “an opposition.”

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lines for the Cambodian context. First, if UNTAC prohibited the factions from receiving external assistance, e.g., in the electoral code of conduct, o r the SNC embargoed such aid, the requirem ent under the Comprehensive Settlement Agreement of cooperation by the signatory states in implementing the settlement would render this assistance impermissible in most circumstances.219 Second, absent such a ban, lawfulness should depend upon the extent to which the aid promotes or detracts from the goal of the settlement, the creation o f a “neutral political environment conducive to free and fair elections.”220 The criti­ cal factor in assessing whether assistance furthers this goal would be its intended use, which could range from purely humanitarian aid to a faction, to funds for building democratic institutions, and even to targeted campaign financing. Funds destined for immediate humanitarian relief or institution building could be more easily justified than direct campaign contributions, as the latter could unfairly aid one party to the detriment of UNTAC’s mission and the settlem ent’s purpose. These matters require closer study in world capitals and the United Nations d u r­ ing the transitional period, but the approach outlined above conforms with the spirit of the Paris accords.221 Human Rights The human rights provisions of the Guarantees Agreement generally restate those in the Comprehensive Settlement Agreement. Their repetition stems from their importance to the settlement and the need to emphasize that the human rights commitments apply for both the transitional phase and the longer term. Enforcement Provisions The Guarantees Agreement includes its own enforcem ent section. These obli­ gations complement the earlier obligations on Cambodia’s status, nonintervention and human rights and are central to the “guarantee” provided in this Agreement. U nder Article 5, in the event of a violation or threat o f violation o f Cambodia’s status, the parties must first “consult immediately with a view to adopting all appropriate steps to ensure respect for these commitments and resolving any such violations through peaceful means.” The Agreement then lists several such steps: reference to the Security Council, recourse to the means for peaceful settlement of disputes under Article 33 of the Charter, and the assistance of the co-chairmen of the Paris Conference. This Agreement thus gives the co-chairmen a lesser role than the Comprehensive Settlement Agreement, instead emphasizing the methods of dispute resolution under the Charter. A separate, stronger mechanism is to be used for responding to “serious viola­ tions of human rights in Cambodia,” under which the parties agree to “call upon the com petent organs of the United Nations to take such other steps as are appropriate for the prevention and suppression o f such violations in accordance with the relevant international instrum ents.”222 This provision was included to 219 Comprehensive Settlement Agreement, supra note 34, Arts. 27, 28; see also Final Act, supra note 33, para. 12 . Cf . Damrosch, supra note 215, at 4 3 -4 5 (electoral assistance impermissible under customary international law if banned by target state for nonrepressive reasons). 220 Final Act, supra note 33, para. 10; Comprehensive Settlement Agreement, supra note 34, Art. 6. See also Vienna Convention on the Law o f Treaties, supra note 38, Art. 31(1), 1155 UNTS at 340 (interpretation o f treaties in light o f their object and purpose). 221 See infra note 241. 222 Guarantees Agreement, supra note 35, Art. 5(4). C f Genocide Convention, supra note 154, Art. VIII: “Any Contracting Party may call upon the competent organs o f the United Nations to take such action under the Charter o f the United Nations as they consider appropriate for the prevention and

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underscore the international community’s continued anxiety about hum an rights in Cambodia and its resolve (or at least hope) to react forcefully in case o f re­ newed atrocities by the Khmer Rouge (or others). The conference states are thus legally committed to using the processes of the United Nations to respond to such abuses.223 The Agreement does not, however, require them to undertake any particular action within the United Nations once its organs are seized o f the matter. Nevertheless, it does compel them to take some action “appropriate for the prevention and suppression o f such violations” ; if they alert the U nited Na­ tions to the situation without subsequently trying to move the Organization to act, they would render nugatory their duty to request a UN response and would not be implementing the Agreement in good faith. IV. T h e D e c l a r a t i o n o n R e h a b i l i t a t i o n a n d R e c o n s t r u c t i o n The Declaration on the Rehabilitation and Reconstruction o f Cambodia is the final docum ent concluded by the Paris Conference. A nonbinding statement, it is based on the report of Committee III, which achieved consensus on this issue.224 Although some parties sought a more binding commitment to reconstruction assistance, the hortatory language of the Declaration was the only approach on which all could agree. Among its thirteen principles for the rehabilitation of the country, the Declara­ tion states that the primary responsibility for determ ining Cambodia’s reconstruc­ tion needs rests with the elected government and that foreigners should not im­ pose a development strategy upon the country. It adds that some efforts should commence immediately to address pressing needs225 and notes the im portance of the United Nations in assessing needs and coordinating relief efforts.226 Echoing a theme of the 1990s, the Declaration asserts that the reconstruction “should p ro­ mote Cambodian entrepreneurship and make use o f the private sector,” as well as involve regional and nongovernmental organizations.227 Finally, the Declaration calls for the creation of an International Committee on the Reconstruction of Cambodia to “harmonize and m onitor the contributions that will be made by the international community.”228 V . A n O v e r v ie w

of

Im p l e m e n t a t io n

to

D ate

Implementation of the Paris agreements is now well advanced in many respects, although it faces serious hurdles in the months preceding the scheduled elections. On O ctober 16, 1991, the Security Council authorized the dispatch o f a United Nations Advance Mission in Cambodia (UNAMIC) immediately upon signature o f the Paris agreements (Res. 717). UNAMIC’s primary mission was to work with the factional military leaders to maintain, prior to the arrival o f UNTAC, the first stage suppression o f acts o f genocide or any o f the other acts enumerated in Article III.” 78 UNTS at 282 (emphasis added). 223 The “relevant international instruments,” e.g., the Genocide Convention, the International Cov­ enant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, do not restrict the recourse o f members to the com petent organs o f the United Nations for the resolution o f human rights issues. See ICCPR, supra note 119, Art. 44, 999 UNTS at 184; ICESCR, supra note 152, Art. 24, 993 UNTS at 10; International Convention on the Elimination o f All Forms o f Racial Discrimination, supra note 153, Art. 16, 660 UNTS at 234. 224 See Comm. I ll Rep., supra note 23, at 3 . 225 Declaration, supra note 36, paras. 2, 8. 226 Id., paras. 6, 7, 9. 227 Id., para. 12. 228 Id., para. 13.

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of the cease-fire required by the Comprehensive Settlement Agreem ent.229 O n October 31, the Council expressed its full support for the Paris agreements and authorized the Secretary-General to appoint a Special Representative for Cambo­ dia (Res. 718). On January 8, 1992, the Council, in response to publicity and concerns about the dangers of unexploded mines, expanded UNAMIC’s m andate to include training in mine clearance and initiation o f a mine-clearance program (Res. 728). O n February 19, 1992, the Secretary-General submitted a lengthy plan o f im­ plementation230 describing the organization of UNTAC. The report recommended that UNTAC comprise seven components: human rights, elections, military issues, civil administration, police, repatriation, and rehabilitation. It contained a de­ tailed timetable for implementation of the settlement, setting the election for April to May 1993. The Security Council adopted the Secretary-Generars rep o rt and created UNTAC on February 28 (Res. 745). UN U nder Secretary-General Yasushi Akashi, who had previously been appointed by the Secretary-General as his Special Representative, took up his duties in Phnom Penh two weeks later, on March 15. Since then, UNTAC has deployed most of its military com ponent, including over fifteen thousand troops; the civil administrative responsibilities have proceeded more slowly.231 Although a tenuous cease-fire generally prevails, the most signifi­ cant setback to execution of the accords is the Khmer Rouge’s refusal to date to participate in the cantonment and demobilization, which began in mid-June 1992. The Khmer Rouge has insisted that it will cooperate only if the SNC’s power vis-à-vis the Phnom Penh government is vastly increased and the United Nations confirms that all Vietnamese forces (among which the Khmer Rouge includes settlers) have left the country.232 Khmer Rouge intransigence has extended to occasional military actions, including massacres o f ethnic Vietnamese and deten­ tion of UNTAC personnel. The State o f Cambodia, for its part, is also engaging, according to UNTAC, in nefarious activities, including harassment o f opposition politicians and intimidation of human rights leaders.233 As of the time of this writing, the international community has undertaken numerous efforts to secure Khmer Rouge compliance. After a statement by the President of the Security Council234 and a Security Council resolution dem anding 229 See Report o f the Secretary-General on Cambodia, UN Doc. S /2 3 0 9 7 (1991); Comprehensive Settlement Agreement, supra note 34, Art. 9 and Ann. 2, Art. I, para. 1. 230 Report o f the Secretary-General on Cambodia, UN Doc. S /2 3 6 1 3 (1992). 231 UNTAC’s implementation is fully discussed in the progress reports prepared by the SecretaryGeneral. See First Progress Report o f the Secretary-General on the United Nations Transitional Au­ thority in Cambodia, UN Doc. S /2 3 8 7 0 8c C orrs.l 8c 2 (1992); Special Report o f the Secretary-Gen­ eral on the United Nations Transitional Authority in Cambodia, UN Doc. S /2 4 0 9 0 (1992); Second Special Report o f the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S /2 4 2 8 6 (1992) [hereinafter Second Special Rep.]; Second Progress Rep., supra note 153; Report o f the Secretary-General on the Implementation o f Security Council Resolution 783 (1992), UN Doc. S /2 4 8 0 0 (1992) [hereinafter Nov. 15 Rep.]. 232 See, e.g., Nov. 15 Rep., supra note 231, at 15; Khieu Samphan Makes ‘New Proposal’ at SNC, FBIS, E. Asia D aily Rep ., Aug. 26, 1992 (Khmer Rouge views on Vietnamese forces and proposal for “consultative committees” to be placed within administrations o f four factions). Earlier Khmer Rouge arguments that, under the Paris accords, the existing administrative structures o f the State o f Cambo­ dia must be dismantled, see, e.g., Khieu Samphan Gives Address, FBIS, E. A sia Daily Rep ., June 8, 1992, at 3 2 -3 4 , are completely without merit. See text at and notes 7 5 -8 3 supra. 233 Wash . Post , N ov. 27, 1992, at A41. 234 N ote by the President o f the Security Council, UN Doc. S /24091 (1992).

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adherence to the accords235 failed to achieve meaningful results, the SecretaryGeneral, with the approval of the Security Council, invoked Article 29 o f the Comprehensive Settlement Agreement and asked the co-chairmen o f the Paris Conference to undertake immediate consultations.236 Consultations among the co-chairmen, the SNC, the Perm anent Five, and interested regional players d u r­ ing the fall of 1992 were generally unsuccessful. As a result, on November 30, 1992, the Security Council imposed selective economic sanctions on the Khmer Rouge and threatened additional measures (Res. 792). Sensing that complete implementation o f UNTAC’s mandate may prove impossible, the Council and the Secretary-General have spoken o f the need to fulfill “ the fundam ental objectives” o f the Paris agreements and reaffirmed their view that elections must be held in May 1993, regardless of Khmer Rouge cooperation or participation.237 In August 1992, Special Representative Akashi, in response to the lack of una­ nimity in the SNC (due to Khmer Rouge opposition), exercised his authority over the elections by promulgating an electoral law for Cambodia.238 Although the law more narrowly enfranchises the ethnic Vietnamese than the Agreem ent,239 the Khmer Rouge has rejected it as perm itting Vietnamese settlers to vote. Mean­ while, UNTAC has also begun to register political parties. Repatriation o f persons from Thailand commenced on March 30, 1992, although the slow pace o f mine clearing has created absorption problem s.240 The international committee on re­ construction called for in the Reconstruction Declaration was created at an inter­ national conference in Tokyo on June 22, 1992.241 V I. C o n c l u s i o n

For the international lawyer, the Paris agreements o f 1991 are significant in several respects. First is their comprehensiveness. They represent the latest exam­ ple o f a multilateral agreement aimed at settling all aspects o f a long-running regional dispute. Although Security Council resolutions incorporating settlem ent principles242 or proposals243 may advance negotiations, and resolutions with man­ datory settlement terms may occasionally prove suitably exhaustive,244 the multilat235 SC Res. 766 (July 21, 1992). 236 Nov. 15 Rep., supra note 231, at 1; SC Res. 783 (Oct. 14, 1992). 237 Nov. 15 Rep., supra note 231, at 8; SC Res. 792 (Nov. 30, 1992). 238 u n tA C Chief Signs Cambodian Election Latus, FBIS, E. A sia Daily Rep ., Aug. 19, 1992, at 20; Second Progress Rep., supra note 153, at 3. 239 Compare Second Progress Rep., supra note 153, at 3 - 4 (electoral law enfranchising persons over 18 (1) born in Cambodia to a parent born in Cambodia, or (2) born overseas to a parent meeting criteria (1)) with Comprehensive Settlement Agreement, supra note 34, Ann. 3, para. 4 (enfranchising persons over 18 born in Cambodia or born overseas to a parent born in Cambodia). 240 Second Progress Rep., supra note 153, at 11. 241 Declaration on Rehabilitation, FBIS, E. Asia D aily Rep., June 23, 1992, at 6 (containing Tokyo Declaration on Rehabilitation and Reconstruction o f Cambodia). With regard to assistance to the factions discussed in text at and notes 2 1 8 -2 1 supra, paragraph 2(c) o f the Tokyo Declaration, id., states that “ [assistance . . . should be made available impartially with full regard for Cambodia’s sovereignty, and benefit all regions o f Cambodia, and reach all levels o f society and the most needy sectors o f the population.” See also Second Progress Rep., supra note 153, at 1 2 -1 3 (UNTAC policies on disbursement o f assistance). 242 See, e.g., SC Res. 242, UN SCOR, 22d Sess., Res. 8c Dec. at 8, UN Doc. S /IN F /2 2 /R e v .2 (1967); SC Res. 338, UN SCOR, 28th Sess., Res. 8c Dec. at 10, UN Doc. S /IN F /2 9 (1973) (principles for settlement o f Arab-Israeli conflict). 243 See, e.g., Framework Document, supra note 28. 244 See SC Res. 687, supra note 179 (terms for conclusion o f Persian Gulf conflict).

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eral treaty negotiated through an international conference remains an im portant peacemaking mechanism.245 As other agreements— even those like the 1954, 1962 and 1973 Indochinese accords, which are little more than dead letters now — proved to be im portant models for the Cambodian accords, the latter notably enhance state practice in terms of the structure and content of such an agree­ ment. The form — one agreement to end the immediate conflict and one to govern the country’s long-term status, detailed annexes that build on general provisions in the main text, nonbinding statements where consensus is impossible— will be­ come the starting point for future accords. More im portant than their structure, the substance o f the accords evinces the place of customary and Charter law in the settlement o f disputes and the ability of actors in the international system to devise new concepts when necessary. For example, many of the woes suffered by Cambodia in relation to its neighbors— es­ pecially Vietnam— were best addressed through perm anent neutralization. Such neutrality does not guarantee that Cambodia will not fall under the influence of a regional power in the future— witness Laos, in spite of the 1962 accords— but it does constitute the best legal basis for decreasing that possibility. Similarly, the other great tragedy of m odern Cambodia, the atrocities perpetrated by the Khmer Rouge (as well as human rights abuses by the PRK), was viewed as best tackled by obligating Cambodia to meet its commitments under the pertinent human rights instruments, especially the Genocide Convention. For other aspects of the settlement, existing conventions and principles of customary international law were insufficient. Establishment o f a “level playing field” for the conduct of elections appeared impossible without an intrusive UN role. Since two groups claimed to be the government of Cambodia, the concept of a government was set aside, and the idea of the SNC was introduced to create an entity all states could accept as capable of delegating governmental functions to the United Nations. The SNC’s form ation requires some new thinking about sov­ ereignty of states and recognition of governments, especially if it is considered as a possible precedent for other internal conflicts. By emphasizing human rights, such as by obliging a state to adopt a liberal democratic system (one Cambodia has never experienced), the Cambodian settle­ ment advances the creation of human rights norms and supports those who argue for a human-rights-based concept o f sovereignty. The endorsem ent of this con­ cept. for Cambodia by states not themselves dedicated to democratic principles (such as China and Vietnam) highlights a layer o f hypocrisy in their thinking that one can only hope they will someday confront. Although Cambodia’s human rights record is far worse than that o f most states engaged in civil conflict (if such comparisons can be made), the prominence o f hum an rights in the accords sug­ gests that many states now view the improvement o f hum an dignity as complemen­ tary to cease-fires, troop withdrawals, arms cutoffs, and elections in political set­ tlements. For international lawyers and students of international affairs, and especially of international organization, the Cambodian peace process— including UNTAC’s implementation o f the accords— merits further analysis. Building upon the U nited Nations efforts in Namibia and Central America, it may be the harbinger

245 The attempt to solve the crisis in Yugoslavia through such a conference continues the use o f this process. See generally Report o f the Secretary-General on the International Conference on the Former Yugoslavia, supra note 160.

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of an enhanced United Nations role in the resolution o f regional conflicts, as envisioned under chapter VI of the C harter.246 With the end o f the Cold War, the United Nations has moved beyond what form er U nder Secretary-General George Sherry once called “impasse m anagem ent”247 toward a m ore assertive posture in the formulation and implementation of settlements to disputes. Although action under chapter VII may be a necessary response to a small num ber of severe crises sparked by an identifiable aggressor, most interstate conflicts are more suited to imaginative action under chapter VI. In the case o f Cambodia, that involved a concerted effort by the five perm anent members o f the Security Council, working with experts from the Secretariat, key regional participants (such as Indonesia, Australia and Japan) and the factions, all within the framework o f the multilateral Paris Conference on Cambodia. The product of their work included the generation of unprecedented solutions assigning intrusive tasks to the United Nations in mem ber states that have under­ gone civil strife. Where the contending factions cannot agree upon even the minimal elements necessary to form a transitional government prior to elections, surmounting this obstacle may prove feasible through the creation o f an entity capable of delegating functions to the United Nations.248 Moreover, if the Cam­ bodian elections are successful, Cambodia could become the prototype for direct UN administration of elections in countries where m ere oversight o f polling con­ ducted by local authorities will not ensure a fair outcome. At the same time, the numerous obstacles to such future endeavors, not the least o f which is cost, should not be underestimated. The Paris agreements, of course, represent m ore than docum ents for assess­ ment by academics and policy makers. At the moment, they embody Cambodia’s only hope. They are facing the most difficult test imaginable; for, although they provide a framework for the settlement o f the Cambodian conflict, they do not themselves force the Khmer Rouge to comply, achieve the retu rn o f refugees, rid the country o f mines, guarantee a fair election or, most im portant, ensure a durable peace and the long-term protection o f hum an rights. It is already appar­ ent that UNTAC’s modus operandi has differed somewhat from that envisaged during the negotiation o f the accords; predicting the extent to which the agree­ ments will ultimately bring tranquility to the people o f Cambodia would be irre­ sponsible. But they do merit the active support o f the world community now and in the future, lest they become, like their predecessors in 1954, 1962 and 1973, ju st another failed attem pt to bring peace to Indochina.

246 See generally An Agenda for Peace: Preventive diplomacy, peacemaking and peacekeeping: Re­ port of the Secretary-General pursuant to the Statement adopted by the Summit Meeting o f the Security Council on 31 January 1992, UN Doc. A /4 7 /2 7 7 - S /2 4 1 11 (1992), reprinted in 31 ILM 956 (1992). 247 George L. Sherry, The United Nations, International Conflict, and American Security, 101 Po l . Sei. Q. 753, 762 (1986). 248 See Gerald B. Helman & Steven R. Ratner, Rescuing Failed States, Foreign Po l ’y , Winter 1 9 92-93, at 3.

[2] The Cambodian Waltz: The Khmer Rouge and United Nations Intervention MICHAEL WESLEY

Approaching the 1989-93 Cambodian peace process from the Khmer Rouge point of view, this article explores how the group’s nature, history and ideology conditioned its unco-operative response and tactics towards United Nations intervention. It observes that the Khmer Rouge, once it realized it could not manipulate the structures of the peace process to the benefit of its own aspirations, adopted a two-track policy. It remained outside the peace process, awaiting the withdrawal of the UN, preserving its military potential to take power afterwards. At the same time, it attempted to retain its international and domestic support despite its non-co-operation, by accusing UNTAC of subverting the Peace Agree­ ments. Finally, the article explores how UNTAC was able to salvage the peace process despite the best efforts of the Khmer Rouge.

Over 20 years after its tanks rolled into Phnom Penh, the Khmer Rouge fights on in the Cambodian forests, deposed, isolated, but still potent. The latest chapter in the history of one of the twentieth century’s most infamous organizations saw it survive another attempt to end its insur­ gency, this time in the form of an international peace initiative. Faced with an international community determined to put an end to its civil war, the Khmer Rouge intercepted the United Nations (UN) with a desperate embrace, trying to hold the international community close but its peace­ keepers aloof, waiting for the inevitable international fatigue and withdrawal from Indochina. The interaction between the Khmer Rouge and the UN offers an opportunity to examine a relationship that has become increasingly common since the Cold War: between sub-state belligerents and an international community increasingly preoccupied with resolving regional and civil wars. It is particularly interesting to examne how the Khmer Rouge was able to survive the attentions of UN intervention which was aimed at stripping it of its military potential and making the radical Maoist organization submit to general elections. Isolating and examining this aspect of the Cambodian peace process yields insights into the interaction between sub-state and super-state organizations, how guerrilla groups have been affected by the end of the Cold War, and the viability of UN expanded peacekeeping in resolving civil wars against the wishes of their insurgents. Terrorism and Political Violence, Vol.7, No.4 (Winter 1995), pp.60-81 P U B L IS H E D B Y F R A N K C A S S , L O N D O N

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This article is in three parts. The first provides a background charac­ terization of the history, structure, methods and objectives of the Khmer Rouge. The second examines the changes to the Khmer Rouge’s intern­ ational environment: the end of the Cold W ar, the détente in south-east Asia, the reactivation of the UN, and its interest and ambitions in resolving the Cambodian civil war. The third section analyses how the Khmer Rouge endeavoured to contend with an international intervention that it saw as dangerous to its interests, and how the UN peacekeepers responded to this challenge. The main argument of the article is that the existence of the Khmer Rouge was gravely endangered by an international initiative to resolve the civil war democratically. Eager to retain international favour while avoiding the peace process, it initially tried to manipulate the intervention to its advantage, and when it failed at this, attem pted to hold the peackeeping force responsible for its non-co-operation while waiting for its withdrawal. The Khmer Rouge The international notoriety of the Khmer Rouge contrasts with its intense organizational secrecy.1Yet most of its actions towards the UN between 1989 and 1993 are rooted in its organizational history, structure, ideology, goals and tactics. As an outgrowth of the Indochina Community Party, it began as the Khmer W orker’s Party, formed by a group of Paris-educated Cambodian communists headed by Tou Samouth, Nuon Chea, leng Sary and Saloth Sar, who became known as the infamous Pol Pot.2 It was first called the Khmer Rouge by the former Cambodian leader Prince Norodom Sihanouk, who outlawed the group in 1963. It subsequently became a guerrilla insurgency, establishing strong external links with the North Vietnamese and the Chinese regimes, expanding its support base among the disaffected rural populations, and familiarizing itself with techniques of warfare from the dense Cambodian forests.3The Khmer Rouge leader­ ship has remained largely unchanged since the fighting and purges of the mid-1970s, and the closeness of Pol Pot, Khieu Samphan, Son Sen, Nuon Chea, leng Sary and Ta Mok is reinforced by interlinking familial relationships.4 Its years of fighting an insurgency and its connection to the Chinese Communists led Khmer Rouge to develop a strongly nationalist, xeno­ phobic, radical agrarian ideology, and a respect for Maoist tactics of guerrilla warfare. They also imbued the organization with its enduring structure: the reliance on ideological indoctrination, terror and strict hierarchical discipline; decentralized organization; command by attached political cadre and ideological decree; and the jealous isolation and

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control of its civilian support. On 17 April 1975 the Khmer Rouge took power in Cambodia following a classic Maoist guerrilla campaign against an externally-supported liberal regime weakened by regional instability. Its subsequent policies in establishing Democratic Kampuchea - the closure of Cambodia to the outside world; the depopulation of the cities; anti-intellectualism and anti-clericalism ; the genocide of over one million Cambodians; and external belligerence - led to the Vietnamese invasion of January 1979 and the subsequent demonization of Democratic Kampuchea by sections of international opinion.5 The V ietnam ese invasion and installation of the People’s Republic of Kampuchea (PRK) returned the Khmer Rouge to fighting from the forests, but also carried benefits. International opposition to the Vietnamese invasion brought support from China, Thailand and the Association of South-East Asian Nations (ASEAN); legitimacy as part of the Coalition Government of Democratic Kampuchea (CGD K), and an alliance with two smaller resistance groups.6 Its international diplomatic support, and its participation in the CG D K , furnished it with an instrument rarely possessed by insurgent movements: access, on the base of rotation with the other groups in the C G D K , to a seat at the UN representing Cambodia. The Khmer Rouge’s developm ent, and the m ethod of its seizure of power had an enduring influence on the objectives and strategies of the contem porary Khm er Rouge as it grappled with the UN intervention. Its return to guerrilla warfare led it to revert to and perfect its methods of organization and warfare. Its discipline, insurgent skill, secure bases in the Cardamom mountains and on the Thai border, and its support and supply by China and Thailand, enabled it to hold over ten per cent of Cambodian territory, and launch annual wet season offensives against Soviet-backed Cambodian and Vietnamese forces. This prowess, in turn, has led to its retention of force as its foremost instrum ent, and its con­ tinued pronouncem ents on the viability of the revolutionary seizure of power.7 Its earlier history in the Indochina conflict had convinced it that externally-installed liberal regimes were weak," and that international attention and interest in Indochina were transitory.'* Using classic Maoist tactics, the Khmer Rouge relies on political mobilization, guerrilla war­ fare, and waiting, to exhaust and destabilize incumbent regim es.1" Its experiences have convinced the leadership of the benefits of international legitimacy and support." Chinese and Thai weapons transfers to the Khmer Rouge throughout the 1980s are estim ated to have surpassed $100 million per year, including artillery and missiles, by the end of the decade.12Its membership of the CG DK gave it international support and participation in the Cam bodian delegation to the UN, and achieved the isolation and condem nation of the Vietnamese and the PRK regim e.13

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These tactics and convictions, as well as its dedication to its objectives, may be seen to have informed the Khmer Rouge’s relations within the UN interventions in the early 1990s. Its goal had always been to expel the Vietnamese, topple the PRK regime (now calling itself the SoC, or State of Cambodia), and re-establish Democratic Kampuchea. By the late 1980s, the Khmer Rouge had realized that it would never succeed in carving out a ‘Liberated Zone in Cambodian territory from where it could overthrow the SoC regime while Cambodian People’s Armed Forces (CPAF: the SoC army) and Vietnamese troops could launch annual, armour-supported, dry-season offensives into Khmer Rouge strongholds.14 It had become convinced that a Vietnamese withdrawal was vital to its seizure of pow er.15It watched the changes in the international system with interest, as the Soviet bloc sought an end to regional confrontations, including in Cambodia, and as regional détente in south-east Asia increased international desire to end the Vietnamese intervention and the Cam bod­ ian civil war. The internationalist, dovish faction of the Khmer Rouge leadership, led by Khieu Samphan and Sonn Sen, saw in these develop­ ments an opportunity to break the stalem ate diplomatically; while the hawkish faction, comprised of Pol Pot, leng Sary and Ta Mok, saw in the burgeoning peace process a possibility of achieving a position from which it could launch a military seizure of pow er.16 Its subsequent behaviour attests that by the start of the 1990s, the Khmer Rouge had resolved to try to exploit these international changes to its benefit, agreeing to attend the international peace effort on Cam bodia, which it would attem pt to manipulate to its advantage. The Khmer Rouge’s experience of Cambodian politics and war had led to a conviction that kin order to secure power, Cambodian leaders had to eliminate opposition ... [t]he talks were perceived . .. not as a way to solve the Cambodian conflict but as a way to win this conflict.’17Years of insurgency against incumbent legal systems had led to an expectation that agreements had to be underwritten by force and were open to interpre­ tation and alteration as the objective forces in competition changed.18By participating in the international peace process, therefore, it never intended to compete peacefully for power under international super­ vision, - nor admit the possibility of sharing power with its rivals in a democractic, open society. Its facade of co-operation was designed to secure an advantageous position from which it could eliminate the opposition and seize and hold power in Cam bodia, as it had done in 1975. By 1989 the Vietnamese had unilaterally withdrawn, and the Khm er Rouge predicted that the developing peace process would lead to the collapse of the SoC, and carry a tem porarily co-operative Party of Democratic Kampuchea (PDK, the name adopted by the Khmer Rouge

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during the peace process) closer to the centre of power, from where it could take power by subverting from withinlv and attacking from without any transitional arrangem ent2*1The Khmer Rouge thereby resolved to take advantage of the international interest in Cam bodia, by maintaining its military potential, anticipating changes in the objective factors, and awaiting the inevitable withdrawal of international interest. The United Nations The international involvement in Cambodia that the Khmer Rouge originally intended to exploit to its advantage, but which developed into a threat to its existence, began with the end of the Cold W ar. Originating with Mikhail Gorbachev’s July 1986 Vladivostok speech, which specifically advocated the resolution of the Cambodian conflict, ‘which would benefit simultaneously the cause of security in Asia’,21 the major international and regional powers began to see Cambodia as one of the regional conflicts that were poisioning their increasingly close relations. As the end of East-W est confrontation was attended by an increase in security concerns from regional and civil wars, the international community became increasingly concerned with containing and term inating these conflicts. The spectacular use of the UN during the 1991 Gulf War led to a prominent role being groomed for the organization as the custodian of peace through ‘a partnership of nations . . . based on consultation, co­ operation and collective action ... united by principle and the rule of law and supported by an equitable sharing of cost and com m itm ent/22 The Cambodian civil war had long been an obstacle to Chinese-Soviet, Chinese-V ietnam ese, V ietnam ese-A SEA N , Soviet-W estern, and Vietnam ese-Thai relations.23 By the late 1980s, closer relations were seen to be beneficial for all in this booming economic region. Given this climate, it was natural that international eagerness to resolve the Cambodian conflict would be co-ordinated and channelled through the UN. The UN had been interested in resolving the Cambdian civil war since 1979, when the G eneral Assembly condem ned the Vietnamese invasion and called on the Secretary-General to m onitor the situation closely and use his good offices to prom ote peace. Upon taking office in 1982, Perez de Cuellar signalled his interest in ending the war by making his first visit as Secretary-General to Thailand and Vietnam to discuss Cam bodia.24On the basis of this visit, the Secretary-General reported to the General Assembly that only a comprehensive Cam bodian settlem ent, achieved through genuine negotiations, could resolve the w ar.25 To follow up on this initiative, he directed Special Representative for Hum anitarian Affairs in South-East Asia, Rafeeudin A hm ed, to maintain close contact

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with the Cambodian parties. Perez de C uellar’s and A hm ed’s on-going contacts with the Cambodian belligerents led to a report to the General Assembly in 1985 listing the elements of a comprehensive settlem ent. This framework formed the basis of the convening of the Jakarta Informal Meetings in July 1988 and February 1989, the first meetings attended by all the parties. The failure of these conferences led to the active involve­ ment of the Permanent Five of the Security Council, activated as a consulting group by Perez de Cuellar, which had recently been successful in promoting an end to the Iran-Iraq war. The U N ’s2* growing understanding of the bases of the conflict, and its developing vision of its preferred shape of the new world o rd er,27 led it slowly to formulate a set of objectives that it was ultimately to prom ote as a solution in Cambodia. These were to advocate the creation of a single, legitimate, Cambodian government by enabling ‘The Cam bodian people to determine their own political future through free and fair elections organized and conducted by the United Nations in a neutral political environment with full respect for the national sovereignty of Cam bodia.’28 The UN wanted to preseve Cambodian unity and territorial integrity, and to promote its sovereignty, independence and neutrality.29 Ideally, it wanted ‘Cambodia ... [to] adopt a system of liberal, multiparty democracy and ... promote and encourage respect for an observance of human rights and fundamental freedom s’, and a ‘phased return to civilian life of all categories of forces of the Cambodian parties.,3n The UN wanted the process to settle the dispute over the identity of the legitimate inter­ national representative of Cambodia - claimed by all four factions - by producing an indubitable, recognized governm ent, which could be dealt with internationally without controversy. The principles guiding the U N ’s attem pts to resolve the Cambodian war were explicitly stated by the Perm anent Five in Paris in January 1990. They were that the fighting must stop; foreign forces must withdraw; no agreement by force of arms was acceptable; elections should be held to allow Cambodians the right to self-determination; the only lasting solution was through a comprehensive political settlem ent; and that the UN needed to play a strong role in the mediation and oversight of the agreem ent.31The Perm anent Five believed that the ‘[^im plem entation of this approach required the full support of all the parties of the Cam bodia conflict’,32and the durability of the solution necessitated the participation of all the parties in the peace process. This m eant that the UN would have to engage the Khm er Rouge in the process. It was forced to recognize the growing opposition within the UN to giving the Khmer Rouge any oppor­ tunity to reinstall its genocidal regime33by two realist considerations. The Khmer Rouge had to be included to ensure its Chinese sponsors’ continued

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co-operation in the Perm anent Five’s search for peace,34while not tying it to the peace process would have left the Khmer Rouge free to attack the peace process and settlem ent and thereby perpetuate the civil w ar.35The UN therefore accepted the need to defuse the Khmer Rouge and integrate it into Cambodian society through the peace process, ‘so as to reinforce the objectives of the comprehensive political settlem ent and minimize the risks of a return to w arfare.’36 After failing to mediate a peace agreement among the four factions at the 1989 Paris Peace Conference, the UN realized that no common ground existed between the Cambodian belligerents on the problem of power sharing and the composition of a transitional administration before elections to decide the outcome of the peace process. The SoC wanted to run a caretaker administration, while the resistance factions wanted to install an interim, quadripartite, power-sharing arrangem ent. The UN realized that it would have to formulate a compromise itself, and then rely on the Permanent Five’s cohesion and links with the parties to diplo­ matically deliver the parties’ agreement to this form ula.37 The task for formulating a proposal away from the parties was taken on by the inter­ national participants in the Paris Conference on Cambodia (PCC), the Permanent Five and Special Representative Ahmed at a series of m eet­ ings in 1990 and 1991. The Australian Foreign Minister G areth Evans suggested a compromise: that the United Nations should run a transitional interim administration which would be advised by a Supreme National Council (SNC), composed of representatives of the four factions.38 The Evans plan was endorsed by the Permanent Five as a m ethod of avoiding the question of recognition and of tying the parties to the peace process. As their draft agreem ent on a comprehensive political settlem ent took shape, it was presented at various times to the Cambodian belligerents \ . in order to inform them and to seek their understanding and support of the progress made so far.’3g Once the parties’ agreem ent to the framework and formation of the SNC had been achieved, the UN m edia­ tors intended to reconvene the Paris Peace Conference to sign a formal agreement and work out the details of its implementation. The UN ’s draft agreem ent, to which the parties eventually agreed, envisaged a large peacekeeping force to be charged with implementing the agreement. Its initial military responsibilities would be split into Phase 1, monitoring the ceasefire; and Phase 2 administering the disarm a­ ment and demobilization of the factions. Phases 1 and 2 were intended to ‘create a neutral environm ent in which free and fair elections could take place.’*■ It was convinced that the factions’ ‘return to civilian life [was] essential in order to minimize the risk of return to warfare, stabilize the security situation, and build confidence among the parties, thus to ensure

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the best possible prospects of the durability of the settlem ent.’'1' The Permanent Five affirmed that ‘[s]uch an arrangem ent remain[ed] their fundamental com m itm ent,’42 and that an early demobilization would allow the UN to scale back its operations, and ‘carry out its mandate in an effective and cost-efficient m anner’.4' An effective UN presence was intended to furnish security for the participants in the peace process.44 The UN’s intervening force would also administer the post-conflict peacebuilding process, taking ‘action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict.’45On this basis, the UN intended that its peacekeeping force would complete its m andate of supervising demining and infrastructure rebuilding, the formation of a neutral police force, the running of a transitional adm inistration, repatriating refugees and supervising the elections.4* An Electoral Com ponent would register the 4.3 million Cambodians comprising the electorate, as well as registering all parties that wished to compete in the elections, taking care to include all eligible voters and parties in the process to ensure its democratic validity. Over 8,000 polling teams would adm inister the polling and count the ballot, while the peacekeepers would be redeployed to provide security for the voting. Having conducted and verified the election and its results and advanced its other objectives, the UN would term inate its transitional administration, endorsing the newly-formed government and bequeathing its power and sovereignty. The Cambodian Waltz: The Dynamics of the Peace Process Its actions between 1988 and 1992 suggest that the Khmer Rouge calcula­ ted at the outset that if it ostensibly co-operated with the peace process, but manipulated it to its advantage on the ground, it could retain the international legitimacy that m embership of the CG D K and representa­ tion at the UN had given it, while at the same time allowing it to seize power. As early as 1988, Khieu Samphan advocated the participation of the Permanent Five in any peace conference and the need for an international peacekeeping force in implementing any agreem ent in Cam bodia.47 At the start of the peace talks in 1990, it publicly endorsed the Permanent Five’s principles of settlem ent and attested to its desire to co-operate with the UN in the peace process.4" But as it evolved and the Khm er Rouge found itself unable to m anipulate the process or the force sent to implement it, it changed its tactics, and determ ined to sit out the peace while attempting to salvage its external image, waiting for the UN to tire and end its intervention. As it entered the UN m ediation process, the Khm er Rouge had

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perfected the technique of participation for the sake of international legitimacy, knowing there was little danger that a common position would be reached.4V Yet after it was confronted with a cohesive, determ ined Permanent Five that had resolved to formulate a position itself and press the parties into agreement, the Khmer Rouge clearly saw that it would have to co-operate in order to please its Chinese sponsors and placate the UN. Before the 1989 Paris Conference, it advanced a proposal for a transitional, quadripartite, power-sharing arrangem ent, in which each of the resistance factions and the SoC would be given equal influence over the five key administrative fields of foreign affairs, national defence, information, public security and finance, and that each faction would contribute 10,000 soldiers to a reconstituted Cambodian A rm y.50 Had this proposal been accepted, it would have provided the Khmer Rouge, which was able to dominate its two smaller resistance partners, with an ideal platform from which to launch an overthrow of the governm ent which it had succeeded in infiltrating; its quadripartite proposal, according to SoC leader Heng Samrin, would be ‘tantam ount to bringing [the] war right into the heart of Phnom Penh’.51 Much of the impasse between the parties over the transitional arrangem ents came from the refusal of the SoC to countenance this proposal, which would have granted the Khmer Rouge a controlling interest in three-quarters of the state administration, a position not justified by its battlefield position.52The Perm anent Five’s proposal of an SNC bypassed this disagreem ent and pressed the Khmer Rouge and the other parties to agree to the draft proposal. A fter bitterly wrangling over the composition of the SNC, the Khm er Rouge finally endorsed the plan and joined the SNC.53 The Khm er Rouge thus signed the Paris Peace Agreements on 23 O ctober 1991, having been urged into an arrangement with which it could not legitimately quibble, but in the comforting expectation that both the agreem ent and its structures could be altered once they were implemented on the ground. The Khmer Rouge believed after Paris that it had been pushed into an agreement that was disadvantageous to it,54 but which it could exploit to its own advantage through infiltration and military means. In the euphoria after the signing of the Paris Agreem ents, the Security Council members and the UN had no idea that they would be charged with implementing an agreement that one of the major parties did not intend to honour. The UN’s first task was to get Phase 1, the organization of the ceasefire and the establishment of the mechanisms for the rest of the peace process, into operation. With the Paris Agreements lying on the table, it sent a survey mission to ‘investigate the modalities of control and an appropriate number of United Nations personnel to control the ceasefire’ and other aspects of the Agreements, and then an interim U nited Nations Advance

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Mission in Cambodia (UNAMIC) to ‘assist the Cambodian parties to maintain the ... ceasefire.’55 The Khmer Rouge refused to participate with either body, claiming that neither was mentioned in the agreements. The difficulties, and the inevitable institutional inertia within the UN, meant that the peacekeeping force intended to oversee the Agreements’ implementation, the United Nations Transitional Authority in Cambodia (UNTAC), did not become operational unitl March 1992, six months after the signing of the Agreement. The UN missions’ partial and sluggish deployment reinforced the Khmer Rouge’s preconceptions of the insignificance of the Agreements and the insincerity of the international community’s commitment to the Cambodian peace process. It refused to provide the military survey mission with information or to co-operate with UNAMIC, sanctimoniously observing that neither body was sanctioned by the Paris Agreements.5'' UNTAC’s liaison staff in its Mixed Military Working Group reported that the Khmer Rouge seemed genuinely surprised when UNTAC deployed in force and began vigorously to set about carrying out Phase l . 57 Phase 1 involved policing the ceasefire and extending UNTAC’s presence through­ out Cambodia in preparation for the other aspects of the agreement. The Khmer Rouge, depending on its zones of occupation for support and bases and dedicated to preserving its military potential for the revolution­ ary seizure of power and transformation of Cambodian society, was not prepared to provide UNTAC with information on its force levels and dispositions. Nor would it countenance the intrusion of a foreign and ideologically corruptive force into its areas of control. Its cohesion and military potency relies on its isolation and indoctrination of cadres and supporters; a Khmer Rouge directive announced, ‘Before the major issue was to liberate the country from Vietnam. Now national defence is the major issue. We must make preparation for the second stage where it is necessary to protect the rank and file.’5" UNTAC found itself unable to enter areas under Khmer Rouge control, and in those areas where it did establish posts, such as Pailin, its personnel were harassed and isolated, rendering them largely inoperative for the broader peackeeping task.” Additionally, the Khmer Rouge increased its battle readiness and train­ ing, extending its regions of control and attacking the CPAF’s lines of communication during the wet season, in direct contravention of the Phase 1 ceasefire.60 It was an unpromising start for such an ambitious peacekeeping operation, and Khmer Rouge behaviour confirmed a pattern with which UNTAC would have to contend until the end of its mandate. The Khmer Rouge’s opposition to the peace process became official in June 1992, when it refused to participate in Phase 2, the cantonment,

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disarmament and demobilization process. As its attacks on the 1993 elections showed,61 the Khmer Rouge expected to be able to use its military strength to influence the peace process in its favour and conse­ quently never intended to surrender its military advantage by disarming. Years of struggle for power had convinced the Khmer Rouge that it operated in an anarchic environment ‘in which guarantees were usually unwritten by force and were at best a vehicle for discussion when the factors of power projection altered.’'12 Its insistence on greater powers within the SNC, and its stalling tactics within that forum, showed that it was convinced that the erosion of the control of the SoC by UNTAC, the Supreme National Council (SNC) in which the Khmer Rouge could dominate the other resistance factions, and the peace process would provide it with the opportunity to infiltrate the structures of power to a point from which it could launch its military seizure of power. It tried to use its refusal to disarm to modify the agreem ent on the transitional administraton of Cambodia, replacing the SNC with quadripartite control of key fields of administration, thereby infiltrating the govern­ m ent’s core.63 Pol Pot calculated that any elected governm ent, ‘w hatever its composition . . . [would] be a collection of unm ixables. . . [and that] the Khmer Rouge [would] triumph from this disarray by maintaining their political discipline, preserving the strongest military force and appealing to Khmer chauvinism.,MThe Khmer R ouge’s authoritarian hold over its cadre and ‘supporters’, the source of its political discipline and military dominance, was threatened by demobilization and exposure to UNTAC. Co-operating with the disarmament and demobilization process would have been disastrous for a movement with no political existence indepen­ dent of its military wing: ‘The Khmer Rouge is the NADK: if you dem obi­ lize the entire army, there is no Khmer Rouge. So [demobilization] would have been an act of self-destruction, suicidal.'*5 UNTAC Force Com­ mander Lieutenant General John Sanderson com m ented in retrospect: ‘It would only have been suicidal if [the Khm er Rouge] hadn’t been able to put the guys through the cantonm ent, get them away somewhere and reform the army in the bush. I think [UNTAC] came in much greater strength and with much greater determ ination than they anticipated, and they couldn’t do th at.’“ The Khmer Rouge immediately started defying UNTAC’s preparations for Phase 2, refusing it access to Khm er Rouge territory and denying its inventories of its forces and w eapons.67 When it saw that UNTAC intended to rigorously implem ent the Paris Agreement which it had signed, the K hm er Rouge realised what a threat the peace process posed to its organization and aspirations. There was no option but to remain outside the process. Khm er Rouge behaviour in the first half of 1992 indicates the eclipse in the leadership of the dovish Khieu

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Samphan-Son Sen faction by the hawkish Pol Pot-leng Sary faction, and its rejection of negotiations with the UN in favour of reverting to tradi­ tional Maoist guerrilla tactics of attrition, consolidation and waiting. Yet its remaining outside the peace process also had drawbacks. Despite its bestial reputation, the Khmer Rouge had benefited greatly from its legitimacy with the international community. Its membership of the CGDK had granted it access to a seat at the UN; its resistance to the Vietnamese invasion had isolated its enemies, secured its recognition, and the active support of China, Thailand and the ASEAN countries. Now it saw that its supporters and sympathizers, the UN, and its former CGDK partners, were all advocating the peace process. Khmer Rouge strategists must have realized that non-participation in the process was crucial but had to be conducted in such a way as to minimize its international isolation. The strategy selected for these ends by the Khmer Rouge was designed to drive a wedge between the international community and the UNTAC force, and between the peace process and the bulk of Cambodians. To do this, it engaged in a struggle for legitimacy - both international and domestic - with the UNTAC force. It justified its non-co-operation by alleging that UNTAC had not complied by the Paris Agreements, failing to verify rigorously the complete repatriation of Vietnamese forces and implement quadripartite control of the five key administrative fields through the SNC.''“ At all stages, the Khmer Rouge protested ‘its unswerv­ ing commitment to the Paris Agreement’.“ It nevertheless demanded various measures before it would rejoin the peace process, including increased UNTAC patrolling of the border with Vietnam, the cessation of UN financial support for the SoC government, the replacement of the SNC with a five-member body consisting of UNTAC and the four factions, the dismantling of the SoC administrative structure, and the disenfranchisement of all non-ethnic Cambodians.7" After withdrawing from Phase 2 and advancing its proposals, the Khmer Rouge avoided all attempts at negotiating a compromise over its demands, and refused to consider seriously any other proposals, including the concerted attempts of Thai and Japanese diplomats to negotiate it back into the peace process.71 The Khmer Rouge subsequently withdrew from the SNC and its Phnom Penh headquarters, making it even more difficult for UNTAC to seek its co-operation.72 As the peace process continued around it, the Khmer Rouge radio became increasingly hostile towards the UN presence,75began to fire on helicopters and personnel,74and sought further to expand the territory under its control at the expense of UNTAC and the other parties.” The Khmer Rouge also shrewdly began to exploit the prejudices of a

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Cambodian population exhausted by decades of war and foreign inter­ ventions. Its agrarian bias had always attracted the sympathies of rural Cambodians, and for decades it had capitalized on the urban-rural antagonism.7'’ It also cleverly exploited the anti-Vietnam ese xenophobia of many Cam bodians, particularly to m obilize support against the Vietnamese-based SoC governm ent.77 This tactic was adapted to the peace process, as K hm er Rouge propaganda m obilized C am bodian suspicions that Vietnamese agents rem ained in Cam bodia as a subversive presence after the withdrawal of the regular Vietnam ese army. It also advocated the exclusion of residents of Vietnam ese origin from the election process, repeatedly massacring communities of ethnic Vietnamese under the noses of the UNTAC operation.7* Khm er Rouge ideologues were also successful in generating opposition am ong Cam bodians against the UNTAC force and the Paris Agreem ents. Its radio station, the ‘Voice of the G reater National Union Front of C am bodia’, began to characterize the international initiative as yet another in a long line of tragic inter­ ventions in Cambodian affairs and to advocate an indigenous Cambodian solution.” It also made full propaganda use of the luxury and decadence of UNTAC personnel."" In these ways, the Khmer Rouge sought to keep the threatening initiatives of the peace process and its UNTAC implementors at a distance, while retaining the sympathies or acquiescence of the international com­ munity and the domestic population. The K hm er Rouge’s experience of the UN during its occupation of the Cam bodian seat through the 1980s had taught it about the fragility of agreem ents within the organization, especially among interests as disparate as those of the Perm anent Five.*1 Clearly underestim ated was the rapprochement and co-operation within the Security Council in the early 1990s. Its handling of m em ber-states’ diplomatic attempts to negotiate it back into the peace process, charac­ terized by stubborn adherence to its position, refusal to address the contents of counterproposals and vague statem ents of principle rather than firm rejections, dem onstrate the Khm er R ouge’s belief that it could outwait the UN and treat with states in isolation from UN efforts.“2 Similarly, its negotiations with U N TAC were characterized either by absence and no response to communications or by sending liaison officers with no authority to m ake decisions or commit the Khm er Rouge to any agreement.*’ It was also confident of its ability to maintain its military potential and outwait the intervention, particularly under the conditions of a ceasefire. The Khmer Rouge’s experience of external interventions, other than the Vietnamese presence, also convinced it of their transient nature and of the instability and vulnerability of the regimes they installed. It thus resolved to withdraw from and sit out the peace process, knowing

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it would come to an end, while retaining its diplomatic and domestic support for a future push against the government installed by the peace process. Faced with implementing a peace agreement whose viability was threatened by the non-participation of a major belligerent, the UN was in a difficult situation, the Khmer Rouge’s withdrawal from Phase 2 had damaged the delicate momentum and cohesion of the complex peace process. Disarmament was crucial to the progress of the other components of the agreements, in order to ‘stabilize the situation . . . so as reinforce the objectives of the comprehensive political settlem ent and minimize the risks of a return to w arfare’.“ These convictions were vindicated by early 1993, when UNTAC reported that the ‘PD K’s refusal to participate in the second phase of the ceasefire . . . [and] the continuing existence of large and sometimes undisciplined armies, as well as attem pts by some of them to improve their positions on the ground, has had an adverse effect on the security situation in the country’."5The Khmer Rouge’s withdrawal from Phase 2 meant that the UN had to decide between ‘suspending] the operation until all parties [could] be persuaded to fulfil their obligations u n d er the Paris A greem ents’; or ‘p u rsu in g ] the process and thus dem onstrating] that, despite the lack of co-operation of one party, the international community remains determ ined to assist the Cambodian people in their quest for peace and stability’.“ It selected and endorsed the second option, for reasons of economy and prestige, instructing UNTAC to proceed with the peace tim etable while endeavouring to persuade all parties to co-operate fully. For a peacekeeping force, implementing a settlem ent of the complex­ ity of the Paris Agreements, despite the resistance and opposition of the Khm er Rouge, was to make UN TA C’s task infinitely m ore difficult. Special Representative of the Secretary-General Yasushi Akashi and Force Com m ander General Sanderson117 realized that the key to the success of the operation was retaining the legitimacy of the peace process and the operation in the face of a concerted Khm er Rouge attack on its credibility and fidelity to the peace agreem ent. Sanderson early realized that the Paris Agreements were ‘the key to the success of the peace­ keeping operation in Cambodia. The Agreem ent established the legiti­ macy of the conflicting parties. Once they’d signed the A greem ent, their adherence to the Agreem ent was what determ ined the legality of their Organization ... So in a sense the agreement was very binding on them .’** In order to maintain UN support for its task, a task of increased expense, danger and difficulty, UNTAC needed constantly to remind the international community that it was the Khm er Rouge, and not the peace­ keepers, that was defaulting on its Agreem ent commitments. To retain

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the endorsement of the Security Council which had sponsored the peace process, UNTAC was aware of the need to comply scrupulously and obviously with the letter of the Paris Agreem ents. It also made use of two other mechanisms to retain the support of the Security Council. The first was operational: Sanderson was careful to preserve the cohesion of the UNTAC force, realizing that 'm aintaining the unity of the force [was] the key to maintaining the base of your negotiating position and the conten­ tion that you are representing the entire international community.""' The second method was diplomatic. UNTAC made full use of the presence and collegiality of the am bassadors that the Perm anent Five, plus Australia, Japan, and Indonesia, had sent to Phnom Penh, with whom it m aintained a close working relationship that telescoped the operation’s influence back to the Security Council and the capitals of the interested powers. These methods maintained a level of diplomatic and cohesive support behind UNTAC that is rare among peacekeeping operations. Its diligent diplomatic preservation of the international community’s support, advocacy and belief in the legitimacy of the UNTAC operation, despite the best efforts of the Khm er Rouge, freed the operation to implement the Paris Agreements around the Khm er Rouge. The UNTAC operation had to negotiate a course between im plem ent­ ing the Paris Agreem ents despite Khm er Rouge opposition, while still trying to persuade it back into the peace process. Especially to maintain the support of the Thais and the Chinese, it realized that it could never close the door on the Khm er Rouge nor carry out operations against it. W hen the Khmer Rouge withdrew from Phase 2, UNTAC took ‘a number of steps designed to meet the concerns of the PD K ,,g" in particular investigating reports of u n repatriated V ietnam ese personnel, and establishing monitors on the border with Vietnam. The Khm er Rouge acknowledged U N TA C’s e f f o r t s b u t contined to reject appeals'*3 for co-operation.'” The Khm er Rouge position was rejected as inconsistent with the Paris A g re e m e n ts w h ile the Security Council95 imposed a fuel embargo and logging and gemstone m oratoriums on Khm er Rouge areas.1* The Council was aware that measures such as these are not effective against insurgent m ovem ent, because insurgents’ ‘sources of supply and military equipm ent [are] always clandestine. The fact that they’re clandestine means that the U nited Nations can’t interdict them very successfully by normal legal m eans.’*' Yet the significance of the Security Council’s m easures were to signal impatience with the Khm er Rouge and its determ ination to endorse the governm ent emerging from the elections, thereby dispelling the Khm er Rouge’s claim to be the legitimate government. Thus retaining the full endorsem ent of the international community,

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UNTAC’s task became one of ensuring the security of the peace process against the Khmer Rouge. Because uneven disarmament would leave it with a massive military advantage, UNTAC was forced to suspend Phase 2 and allow the factions to keep their weapons.'" The Khmer Rouge’s refusal to co-operate thereby made UNTAC’s task much more difficult: ‘The election will take place while a substantial part of the forces of the Cambodian parties remain under arms ... [which] will add to UNTAC’s difficulties both in organizing the election and in ensuring, as best it can, the security of candidates, voters and electoral officials through the electoral process..... As the electoral and registering process gained momentum, the Khmer Rouge began to attack UNTAC and the electoral process, convinced that the elections would be biased and serve only to legitimate the SoC-Vietnamese occupation of Cambodia."" Sanderson redeployed UNTAC on the basis of the requirem ents of the electoral process and the likely direction of threats to it concentrating deployments against Khmer Rouge areas, in effect cantoning the guerrillas away from the 80 per cent of Cambodia it did not hold."’2 Its concept of self-defence was strengthened to include ‘defence of the processes] which [are] funda­ mental [to] the Paris A greem ents’ in order to operate in an environm ent in which the belligerents had not been disarmed. The credibility of the peace process depended on there being a fair election among a majority of the population. UNTAC’s military and electoral components worked in close co-ordination, publicizing the elections and registering as many Cambodians as was feasible. Their efforts were an outstanding success: they registered 4.7 million Cam bodi­ ans (96 per cent of the eligible voting population) ; of whom 89.56 per cent voted for the 11 registered parties at 1,400 polling stations in every district of Cambodia, save two, deep in Khmer Rouge territory. "“The conduct of the elections was designed to minimize the much-feared impact of Khmer Rouge disruption. Utilizing the six-day election period to the full, Sander­ son concentrated the bulk of the security effort to polling in the low-risk areas at the start of the election. After three days had lapsed, 84 per cent of the vote had been polled. In the rest of the time most of UN TA C’s resources were thrown into providing security for the elections in the fringe areas. By this time, the Khm er Rouge’s interruptions would have no tangible effect on the results or their legitimacy.105The elections yielded a Funcinpec victory, with 45.47 per cent of the vote, and a governm ent of unity was form ed with the CPP (formerly the SoC), which had won 38.23 per cent and as a result was endorsed by the international com m unity.1'“ The UN withdrew from Cam bodia, as predicted by the Khm er Rouge, in November 1993. Assessments of the success of the mission in achieving the objectives of the international community are mixed.'"7 Certainly the

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UN, having established and endorsed a universally-recognized govern­ ment in Cambodia and ended the majority of the regional rivalries and interventions, is satisfied with the success of the UNTAC operation. Yet where does the Khmer Rouge stand after UNTAC? Certainly its attem pts to manipulate the process and then discredit the peacekeeping operation failed. The Security Council’s sustained support of U N TA C’s efforts and overwhelming voter turnout attest to the failure of its attempts to maintain international and domestic legitimacy despite its non-participation in the peace process. However, the other strand of its strategy, the decision to remain outside the disarmam ent and peace process, was a success. The group survives as a potent military force; its ability to destabilize any Cambodian government is undiminished."“ The current governm ent, although immediately after the election forced closer to the Khmer Rouge by a Cambodian Communist Party secession attem pt, subsequently outlawed the group."* The Khmer Rouge again retreated into the mountain fastness of the north-west, where it proclaimed a provisional government in July 1994 and proceeded to attack the other regions of Cam bodia.110 Its campaign of terrorism against Cambodians, the kidnapping and m urder of tourists, and sabotage of developm ent and investment, is designed to destabilize the govern­ ment and discourage investment and interest from entering the country.1,1 This strategy has been somewhat effective: as the governm ent struggles against corruption, crime, drug-running, and an AIDS epidemic, observers note with concern that ‘the present situation recalls the 1970s, before the earlier victory of the Khmer R ouge.’"2 M eanwhile, the governm ent fights on alone, a victim of the inevitable waning of international interest in Indochina.“3 Despite initial successes, such as the capture and then loss of the Khm er Rouge stronghold of Pailin, it is unable to defeat the Khmer Rouge, and is still victim to the cycle of wet and dry season offensives that the guerrillas have m astered.1,4 Thus events since 1993 suggest that both the U nited Nations intervention and the Khm er Rouge have emerged from their embrace like partners from a forced waltz: sustained and wiser, but not fully satisfied.

NOTES 1. David P. Chandler, The Tragedy o f Cambodian History: Politics, War and Revolution Since 1945 (New Haven, CT: Yale UP, 1991), p.271. 2. Christophe Peschoux, Enquete sur les ‘nouveaux’ khmers rouges: essai de debrouissaillage (Paris, 1992), pp. 14-24. 3. William Shawcross, Sideshow: Kissinger, Nixon and the Destruction o f Cambodia (London: Deutsch, 1979), pp.246-51. 4. David P. Chandler, Brother Number One: a Political Biography o f Pol Pot (St.

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Leonards: Allen & Unwin, 1993), pp. 165tf. 5. Revelations of the bestiality of the Democratic Kampuchea regime began to emerge after the Vietnamese invasion in the shape of evidence from death camps such as Tuol Sleng; these led to a growing campaign against the Khmer Rouge and its international support. See, e.g., the works of John Pilger, William Shawcross, The Quality o f Mercy: Cambodia, Holocaust and Modern Conscience (London: Deutsch, 1984); Someth May, Cambodian Witness (London: Faber, 1986); and the 1985 film The Killing Fields. 6. The other Cambodian insurgent movements in the CGDK were the Front uni national pour un Cambodge independent, neutre, pacifique et coopératif FUNCINPEC), and the Khmer People’s National Liberation Front (KPNLF). 7. This conviction was repeatedly expressed by UNTAC personnel who came into close contact with the Khmer Rouge during the peacekeeping mission. See e.g. Jean-Claude Pomonti, Khmer Rouge Hardening Its Line', Guardian Wkly , 10 Jan. 1993; and Bob Drogin, Pol Pot Fanaticism Menacing Cambodia’, Los Angeles Times, 2 Feb. 1993. 8. Gary Klintworth, Cambodia’s Past, Present and Future, Working Paper No.268 (Canberra: Strat. and Defence Studies Centre, 1993), p. 16, reports Pol Pot as calculating that any elected Phnom Penh government, \ .. whatever its composition, and with or without the Khmer Rouge, will be a coalition of unmixables - divided royalists, republicans, bourgeois liberals, carpet-baggers, reformists, and Vietnam­ ese communists.' 9. In its history the Khmer Rouge, as part of the Indochina Communist Party, had watched the eviction of France from Indochina, then the intervention and withdrawal of Amerian, Australian, New Zealand and S. Korean coalition troops and the collapse of the S. Vietnamese regime to communist insurgency and invasion, and its own overthrow of the liberal. American-sponsored Lon Nol regime in Cambodia, after destabilization by US bombing and military incursions into Cambodian territory. 10. See E.L. Katzenbach, ‘Time, Space and Will: The Politico-Military View of Mao TseTung\ in T.N. Greene (ed.). The Guerrilla - And How to Fight Him (NY: Praeger, 1962), pp. 12-14, for a classic exposition of Maoist guerrilla tactics. 11. During the entire peace process, Khmer Rouge leaders maintained their commitment to work with the international community (see e.g. Alan Riding ‘3 Cambodian Factions Sign a UN-Enforced Peace Pact; Khmer Rouge Share Rules’, New York Times, 14 Oct. 1991), accusing, instead, its representatives, such as Yasushi Akashi, as faulty or corrupt agents of the international community; see Nicholas Cumming-Bruce, ‘Cambodians Favour Switch to “High Risk” Formula’, Guardian 4 Sept. 1992. 12. New York Times, 1May 1990. 13. Every year between 1979 and 1991, the UN General Assembly, lobbied by the CGDK and ASEAN, adopted a resolution condemning the Vietnamese invasion of Cambodia and demanding the withdrawal of Vietnamese troops. 14. William S. Turley, The Khmer War: Cambodia afer Paris’, Survival 32/5 (Sept./Oct. 1990), p.439. 15. ‘Declaration by Mr Khieu Samphan, President of the Democratic Kampuchea Party and Vice-President of Cambodia in Charge of Foreign Affairs', A/45/220 and S/21253 Annex, 14 April 1990, p.3. 16. Based on a series of off-the-record interviews. 17. Amitar Acharya, Pierre Lizee and Sorpong Peou (eds), Cambodia - the 1989 Paris Peace Conference: Background Analysis and Documents (NY: Kraus Int., 1991), p.xlvii. 18. Jarat Chopra, John MacKinlay and Larry Minear, Report on the Cambodian Peace Process ( Oslo: Norwegian Inst, of Int. Affairs, 1993), p.21. 19. Trisha Thomas, ‘Into the Unknown: Can the United Nations Bring Peace to CambodiaV Jnloflnt. Affairs 44/1 (Spring 1990), p.514. 20. Nayan Chanda, ‘Civil War in Cambodia?’, Foreign Policy 76 (1989), p.33. 21. Mikhail Gorbachev, ‘International Affairs: Asia and the Pacific Region’, Vladivostok, 28 July 1986, Vital Speeches o f the Day 52/23 (15 Sept. 1986) p. 711.

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22. George Bush, Aggression in the Gulf: a Partnership of Nations’, ibid. 57/1 (Oct. 1993), p.3. 23. For a full discussion of the international dimension of the Cambodian conflict, see Gary Klintworth, ‘China’s Indochina Policy’, Jnl o f Northeast Asian Studies (Fall 1989); Charles McGrevor, ‘China, Vietnam, and the Cambodian Conflict’, Asian Survey 30/3 (March 1990); and Gerard Hervouet, ‘The Cambodian Conflict: the Difficulties of Intervention and Compromise’, Int. Jn l6512. 24. Michael Haas, Genocide by Proxy: Cambodian Pawn on a Superpower Chessboard (NY: Praeger, 1991), p. 187. 25. UNDPI. Towards Peace in Cambodia’, DPI/1091, Sept. 1990, p. 1. 25. Henceforth ‘the UN’ will be used as a shorthand to denote the Member States of the organization that were involved in resolving the Cambodian conflict, plus the Sec.Gen. and other members of the Secretariat involved. 27. This is not to suggest that there was anything resembling consensus on a preferred form of international order or even on the role of the UN: there are tangible divisions between its member states. As ex-colonies jealous of their sovereignty, many develop­ ing states view assertive multilateral interventions in supportof a normative vision of order developed by the West as showing disturbing aspects of neo-imperialism. China, recently admitted to the Non-Aligned Movement, has emerged as a leading voice of dissent against conceptions of multilateral intervention to shape ‘a new world order’. At the Security Council Heads of State Summit, Chinese premier Li Peng voiced Chinese opposition to the proposal advanced for UN activism, warning that China will consistently oppose all external interventions in the internal affairs of sovereign states ‘using human rights as an excuse’. 28. Letter dated 30 Aug. 1990 from the Permanent Representatives of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the Secretary-General, ‘The Situation in Kampuchea: Question of Peace, Stablity and Co-operation in South-East Asia’, A/45/472 and S/21689,31 Aug. 1990, p.3. 29. Letter dated 8 Jan. 1991 from the Permanent Representatives of France and Indonesia to the United Nations Addressed to the Secretary-General, ‘The Situation in Cambo­ dia’, A/46/61 and S/22059,11 Jan. 1991,pp.4-5. 30. Letter dated 3 Sept. 1991 from the Permanent Representatives of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the Secretary-General, ‘The Situation in Cambodia’, A/46/418 and S/23011,4 Sept. 1991, p.2. 31. ‘Summary of Conclusions of the Meeting of the Five Permanent Members of the Security Council on the Cambodian Problem, Paris, 15-16 January 1990’, in Acharya et al. (note 17), pp.487-8. 32. ‘Statement of the Five Permanent Members of the Security Council of the United Nations on Cambodia’, A/45/472 and S/21689 Annex, 31 Aug. 1990, p.3. 33. Successive General Assembly resolutions advocated the role of the UN in ensuring a ‘non-return to the policies and practices of the past’. (See General Assembly Resoluion 43/19 (1988) and Letter dated 31 Aug. 1990, note 28, p. 15). US Sec. of State James Baker summed up the growing consensus in the West when he stated ‘The United States strongly believes that the Khmer Rouge should play no role in Camboia’s future.’ See idem ‘International Efforts for a Peaceful Cambodia’ (Washington DC: Bureau of Public Affairs, US Dept of State, 30 July 1989). 34. This point is convincingly made by Congressman Stephen J. Solarz, ‘Cambodia and the International Community’, Foreign Affairs (Spring 1990), p. 110. 35. Michael Leifer, ‘Powersharing and Peacemaking in Cambodia’, SA IS Reviews 12/1 (Winter-Spring 1992), p. 145. 36. ‘Statement by the Five Permanent Members' (note 32), p. 11. 37. Pierre Lizee, ‘Peacekeeping, Peacemaking and the Challenge of Conflict Resolution in Cambodia’, in David A. Charters (ed.) Peacekeeping and the Challenge o f Civil

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Conflict Resolution (Univ. of New Brunswick, 1994), p. 138. 38. Australian Dept of Foreign Affairs and Trade, Cambodia: an Australian Peace Propo­ sal (Canberra: Australian Govt, 1990). 39. ‘Press Statement of the Co-Chairmen of the Paris Confernce on Cambodia', A/45/719 and S/21940,10 Nov. 1990, p.2. 40. ‘Statement on Cambodia: The Five Permanent Members of the Security Council’, Paris, 13 March 1990. 4L ‘Proposed Structure for the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict’, A/46/61 and S/22059, Annex II, 11 Jan. 1991, p.37. 42. ‘Communiqué Issued on 30 August 1991 by the Co-Chairman of the Paris Conference on Cambodia and the Five Permanent Members of the Security Council’, A/46/418 and S/23011 Annex, 4 Sept. 1991, p.3. 43. ‘Report of the Secretary-General on Cambodia’, S/23613.19 Feb. 1992, p. 14. 44. Chopra, et al. (note 18), p. 19. 45. Boutros Boutros-Ghali, An Agenda for Peace NY: UN, 1992), p. 11. 46. ‘Report of the Secretary-General’ (note 43). 47. These were the final two points of the Khmer Rouge peace proposal issued on 22 Nov. 1988, quoted in Acharya etal. (note 17), 1991, pp.xli-xlii. 48. ‘Declaration by Mr Khieu Samphan , (note 15), p.2. 49. For a highly instructive account of the Khmer Rouge's participation and behaviour of the ASEAN-sponsored peace process before UN involvement, see Haas (note 24), 1991. 50. Quoted in Haas (note 24), pp.216-19. 51. Heng Samrin, quoted in Nayan Chanda, ‘Civil War in Cambodia?’ Foreign Policy , V.76 (Fall 1989), p.33. 52. Turley, (note 14), p.442. 53. ‘Declaration by Mr Kieu Samphan’, (note 15), p.2. 54. See William Branigin, ‘Khmer Rouge Move toward War’, Washington Post, 10 May 1993. 55. ‘Report of the Secretary-General on Cambodia’, S/23097,30 Sept. 1991, p. 1. 56. Ibid.,p.2. 57. Interview with Lt-Col Damien Healey, Australian Defence Force, formerly Chairman of the UNTAC Mixed Military Working Group, 14 Dec. 1993. 58. Chanda (note 51), pp.40-1. 59. The Khmer Rouge isolated and imposed a sort of sanctions regime on the UNTAC post at Pailin (close to the Thai border), deep within its territory. Staff were confined to within the command post and unable to leave the Khmer Rouge-defined compound. Each mission to resupply the post had to be individually negotiated with the local sector commanders and then made by a closely-monitored helicopter flight. These conditions made the post virtually worthless to the wider UNTAC effort, except at times as a liaison point with the Khmer Rouge. Eventually the post at Pailin was withdrawn. 60. ‘Third Progress Report of the United Nations Transitional Authority in Cambodia’, S/25124,25 Jan. 1993, pp.2,8. 61. Philip Shenon, ‘Wave of Violence Threatens Elections in Cambodia’, New York Times, 29 Jan. 1993. 62. Chopra etal (note 18), p. 16. 63. ‘Second Special Report of the Secretary-General on the United Nations Transitional Authority in Cambodia’, S/24286,14 July 1992, p.3. 64. KIintworth(note8), p. 16. 65. Interview with Lt-Gen. John Sanderson, UNTAC Force Commander, Canberra, 15 Dec. 1993. Emphasis on original statement. 66. Ibid. 67. ‘Special Report of the Secretary-General on the United Nations Transitional Autho­ rity in Cambodia’, S/24090,12 June 1992. p.4. 68. ‘Second Progress Report of the Secretary-General on the United Nations Transitional Authority in Cambodia’, S/24578,21 Sept. 1992, p. I.

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69. Proposal of the Party of Democratic Kampuchea on the Role of Supreme National Council and the Implementation of Phase IT, 22 Aug. 1992, S/24800 App. II, 15 Nov. 1992,p.15. 70. See Klintworth, (note 8). 71. See ‘Report of the Secretary-General on the Implemention of Security Council Reso­ lution 783 (1992)’, S/24800, 15 Nov. 1992, pp. 11-12. 72. Fourth Progress Report of the Secretary-General on the United Nations Transitional Authority in Cambodia’, S/25719,3 May 1993, p.4. 73. ‘Second Progress Report' (note 68), p. 14. 74. See ‘Note by the President of the Security Council’, S/25822, 22 May 1993, p.I; and Letter Dated 28 May 1993 from the Secretary-General Addressed to the President of the Security Council’, S/25871,1June 1993, p. 1. 75. ‘Fourth Progress Report’ (note 72), p.2. 76. Chandler (note 1), pp.265-71. 77. Traditional Cambodian hostility towards Vietnam led to the DK government’s launch­ ing of repeated raids into southern Vietnam between 1976 and 1978. Militarily these raids served little purpose, but were extremely brutal, and finally provoked the con­ certed Vietnamese invasion in 1978-9 which was to topple the Khmer Rouge from power in Cambodia. 78. ‘Report of the Secretary-General on the Implementation of Security Council Reso­ lution 792 (1992)’, S/25289, 13 Feb. 1993, pp.3-4. 79. Healey, (note57). 80. See e.g. the reports of the resurgence in prostitution in Phnom Penh, the fact that UNTAC personnel’s daily allowance was more than the average Cambodian earned in a year, and the Khmer Rouge’s ‘ability to speak to the irrational, subconscious side of ordinary Cambodians’, Terry McCarthy, ‘Khmer Rouge Play on Old Fears in Cambo­ dia’, Independent, 14 Oct. 1992. 81. As part of the rotating CGDK and then SNC arrangements, the Khmer Rouge had been able to participate in Security Council debates on Cambodia as a member state under Rule 37 of the Security Council’s Provisional Rules of Procedure, although without a vote. 82. Diplomatic efforts were headed by Thailand and Japan, but also include a ten-state conference with the four factions in Beijing, which included the Permanent Five, Australia, Germany, Japan. Indonesia and Thailand. See ‘Report of the SecretaryGeneral’(note 71). 83. Healey, (note 57). 84. ‘Statement of the Five Permanent Members’ (note 32), p. 11. 85. ‘Third Progress Report’ (note 60), p.23. 86. ‘Second Special Report' (note 63), p.4. 87. For a further account of Gen. Sanderson’s views on the UNTAC operation, see his account in Trevor Findlay (ed.), Cambodia: The Legacy and Lessons o f U NTAC, SIPR1 Peacekeeping Series No. 1 (Oxford: OUP, 1995). 88. Sanderson (note 65). 89. Ibid. 90. ‘Second Special Report’ (note63), p.2. 91. Khmer Rouge negotiators acknowledged satisfaction with UNTAC verification measures at a meeting with Thai and Japanese mediators in Bangkok on 17 July 1992; see ‘Report by Governments of Japan and Thailand Addressed to the Secretary-General of the United Nations and the Co-Chairman of the Paris International Conference on Cambodia’, S/24800 Annex 1,15 Nov. 1992, p.10. 92. On 3 June 1993 Sec.-Gen. Boutros-Ghali addressed a personal appeal to Khieu Samphan, which was rejected in a reply received on 5 June. See ‘Special Report of the Secretary-Generar (note 67), p.3. 93. See Security Resolutions 755 (1992) 21 July 1992 and 783 (1992), 13 Oct. 1992 and ‘Statement by the President of the Security Council’, 12 June 1992. 94. ‘Second Progress Report* (note 68), p. 1.

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81

Security Resolution 783 (1992), 13 Oct. 1992. Ibid.,792(1992),30Nov. 1992. Ibid.,810(1993),8March 1993. Interview with Sir David Hannay, UK Permanent Ambassador to the UN, New York, 29 March 1994. 99. Phase 2, by the time it was abandoned, had disarmed just 52,292 troops out of an estimated 450,000 active soldiers and militia in Cambodia, perpetuating the hostilities especially between the SoC and the Khmer Rouge. 100. ‘Report of the Secretary-General’ (note 71 ), p.6. 101. Khmer Rouge spokesman Mak Ben, quoted in Klintworth (note 8), p. 12. 102. Sanderson (note 65). 103. Healey (note 57). 104. Report of the Secretary-General on the Conduct and results of the Elections in Cambodia’, S/25913,10 June 1993. 105. Healey, (note 57). 106. Security Resolution 880 (1993), 4 Nov. 1993. 107. See Raoul M. Jennar, ‘UNTAC “International Triumph" in Cambodia?’, Security Dialogue 25/2 (1994), pp. 145-56. 108. See e.g. McCarthy, (note 80); ‘Once Beaten, Khmer Rouge Again Haunts Cambodia’, Int. Herald Tribune, 24 Aug. 1994; and Nicholas Cumming-Bruce, ‘Pol Pot Reverts to Terror’, Guardian, 6 Feb. 1995. 109. Idem,‘Turmoil Threatens Cambodian Assembly’, ibid. 14Junel993. 110. ‘Outlawed Khmer Rouge Proclaims Cambodia “Provisional Government”, Int. Herald Tribune, 12 July 1994. 111. Philip Shenon, ‘Rebels Still Torment Cambodia 20 Years after Their Rampage’, New York Times, 6 Feb. 1995. 112. James Pringle, ‘Pol Pot Menace Endures in Cambodia’, The Times , 17 April 1995. 113. Philip Shenon, ‘US Considers Providing Arms to Cambodia to Fight Guerrillas’, New York Times, 30 Jan. 1995. 114. ‘Troops Tell of Uphill Struggle to Contain Khmer Rouge’, Guardian, 18Feb. 1995.

[3] UNDERSTANDING THE KHMER Sociological-Cultural Observations

Abdulgaffar Peang-Meth At this time of intensive searching for a peaceful solution to the Khmer tragedy, it must seem to many observers that the Khmer themselves have become impediments to the process being urged upon them by outside players. It would seem useful to have a better un­ derstanding of the main actors in this drama. Who are the Khmer? What makes them think and behave as they do? Addressing historical, social, and cultural perspectives, this article attempts to respond to those ques­ tions and to orient those who have an interest in achieving a political solu­ tion to the Khmer dilemma.

Khmer History The Khmer have a 2,000-year history distinguished by greatness, territo­ rial expansion, and decline to near extinction. Theirs is a society that has been indelibly marked by the peaks and valleys of its past. Cambodia’s history before the Neolithic Age is obscure, but the existence of the Khmer state is known to date from the first century A.D. as the area of Fu-Nan, meaning “king of the mountains.” Fu-Nan encompassed the southern half of the Southeast Asian mainland for five centuries, but in the sixth it was overpowered by the Kambujas or the Khmer, its vassals to the northeast. The kingdom of Kambuja (Chen-la to the Chinese) was established, later divided by internal disunity and Javanese invasion, and reunified in 802 by Khmer King Jayavarman II under whose rule the Indian Brahmanic cult of the divine god-king, Devaraja, was widely practiced. Jayavarman II was followed by the rulers who led the Khmer empire to greatness in a period that modern-day Cambodian leaders fondly recall. It Abdulgaffar Peang-Meth is a senior member of the Khmer People’s National Liberation Front (KPNLF), one of the three factions in the Cambodian resistance. He was an official of the Khmer Republic Embassy in Washington in 1973-75. In 1990 he was Visiting Associate Professor in Political Science at Johns Hopkins University. © 1991 by The Regents of the University of California

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was the time when the Khm er greatly expanded their territory, art and architecture thrived, irrigation networks were constructed for agriculture, and the people prospered. Suryavarman II (1112-1150) built the monu­ mental Angkor Wat, and Jayavarman VII (1181-1219) built Angkor Thom. They reigned as god-kings, and the price paid for glory was enor­ mous and eventually fatal. The territorial extension of Cambodia, from the east coast of Indochina to Burma’s border in the west and from Vientiane in Laos in the north to the Malay Peninsula in the southwest, was accomplished through long and costly wars. The preoccupation with temple building depleted the nation’s great resources and required forced labor; thousands of priests and shrines were maintained and became rich. As a result, the hydraulic systems were not given adequate attention, irrigation suffered, the economy weakened, and the population became discontented and weary. King Jayavarman V II’s conversion to Theravada Buddhism, which preached individual sal­ vation through one’s own efforts, interrupted the old way of thought and encouraged change. The Khm er people, who had gone through much hardship, readily accepted the peace and tranquility of soul offered by the religion. In the midst of all this, the southward movement of the Thai people from China’s borderlands led to the establishment of the Thai kingdom in Ayudhya in 1350. Then began the gradual displacement of Khm er rule by the Thais, ending with the annexation of Cambodia’s northwest provinces of Battambang and Siemreap in 1795. A simultaneous threat came from the northeast. The Annamites (Vietnamese), freeing themselves from their thousand-year bondage to China, moved southward and extinguished the kingdom of Champa in 1471, thus destroying the only buffer zone between Cambodia and Vietnam. The rich delta of the southeastern Khm er prov­ inces just beyond Annam ’s new frontiers attracted settlement, and in 1620 a Khm er married a princess of Annam ’s Nguyen dynasty. The Khmer saw in Annam a counterbalance to Thailand’s suzerainty over Cambodia, but the king paid dearly for Annam ’s assistance. He granted his wife’s nationals the right to settle in the delta and set up an Annamite colony at Prey Nokor, later renamed Saigon. By the eighteenth century, Cambo­ dia’s southeastern provinces in the low delta (Cochinchina) were annexed and administered by Vietnam. These years between the thirteenth century decline of the Khm er empire and the establishment of the French protectorate in 1863 were marked by territorial losses, political disorder, and wars, straining Khm er institutions and humiliating the people. Dynastic quarrels caused factions, with each K hm er side seeking support and protection from Bangkok or Hue (Viet­ nam ’s capital) at high cost. Cambodia became a battlefield for its two

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neighbors, and King Ang Duong took advantage of France’s colonial ex­ pansion in Asia to ask for its friendship. In 1863 King Norodom signed a treaty with France transforming Cambodia into a protectorate, and two decades later the protectorate became a de facto colony when the king was forced to accept France’s control over Khmer administration. France’s domination was complete; even succession to the throne was placed in French hands. (It was the French who later handpicked young Prince Norodom Sihanouk, an 18-year-old high school student, to be king, pull­ ing him from the French Lycee Chasseloup Laubat in Saigon. He was crowned on April 25, 1941.) The two Khmer provinces of Battambang and Siemreap moved back and forth between French and Thai control until the end of World War Two when France took possession via a treaty signed in Washington. In 1949 France ceded to Vietnam the southeastern Khmer provinces in the low delta of Cochinchina, and Kampuchea Krom or Lower Cambodia, as the Khmers call Cochinchina, was thereby ampu­ tated from Cambodia. The Khmer struggle against colonial rule began in 1945— a time when only an estimated 150 Cambodian nationals had completed a high school education— and in November 1953 France granted complete independence to the country. In 1955 King Norodom Sihanouk, the last Devaraja of Cambodia, announced his abdication from the throne to create and lead a mass political movement, the Sangkum Reastr Niyum (people’s socialist party), which won the first elections in Khmer history. Prince Sihanouk became prime minister of the first Sangkum cabinet, and in 1960 a national referendum approved the prince as Cambodia’s chief of state. From 1955 until his overthrow in March 1970, whatever his title, Norodom Sihanouk controlled the direction and policies of Cambodia. As the Vietnam War spilled into Cambodia, Sihanouk was overthrown in 1970 by General Lon Nol, who transformed the kingdom of Cambodia into a Khmer republic. Sihanouk formed a front to fight against the Khmer republican regime and sided with the Khmer Rouge. On April 17, 1975, the communist Khmer Rouge led by Pol Pot took over Cambodia, bringing down the short-lived republic. Their victory left Sihanouk a virtual prisoner in his own palace, and the Khmer Rouge’s draconian rule and genocidal policies led to the death of at least two mil­ lion Khmer. A struggle for power within the Khmer Rouge led to the defection of a group led by Heng Samrin, which fled to Vietnam for help. In December 1978 some 100,000 Vietnamese regular forces supported by artillery, tanks, and aircraft invaded the Democratic Kampuchea of the Khmer Rouge; they took over Phnom Penh on January 7, establishing a military administration and control in Cambodia and propping up the breakaway Heng Samrin group. Since June 1982, Khmer republicans, roy-

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alists, and the Chinese-backed Khmer Rouge have joined in an unlikely coalition government (now called the Government of Cambodia-GOC) to fight the Vietnamese and their People’s Republic of Kampuchea (now called the State of Cambodia-SOC) puppet regime. The outlook and behavior of the Khm er toward each other and their perception of their place in the world have been influenced by the history recounted here. The Khm er speak with pride of the greatness of their past, and describe a sense that “bad fates” have befallen them, causing the decline of Khm er civilization since the eleventh century and their presentday suffering.

Important Influences on Culture and Society Both the Indian religious philosophy of Brahmanism and the belief system of Theravada Buddhism have been significant influences on Khm er culture and society. Brahmanism. The Hindu Brahmanic cult, which reached the Khmer state in the ninth century, described life in terms of a pyramid-like system at the apex of which was the god-king, Devaraja, who acted as an interme­ diary between the gods and a social order that propounded well-defined class/status/rank/role relationships. Although it was supplanted by Ther­ avada Buddhism, the earlier religion’s emphasis on a pyramidal social or­ der has remained a strong influence among Cambodians to the present day. The absolute Khm er monarchy supposedly ended in Cambodia with the promulgation of the constitution, but the monarch, the spirit of the Devaraja, remained the highest authority in Cambodia until 1970. The constitution itself says: “All powers emanate from the King” (Article 21); “The King is the Supreme Chief of the State. His person is sacred and inviolable” (Article 35); “Every Cambodian owes loyalty to the King” (Article 16).1 Even today there are Khm er who refer to the monarch as “His Majesty with the Sacred Feet, Master of Water, of Land, and of all Existences, Master of the Inferior A rch.” Until the overthrow of Norodom Sihanouk in 1970, the royal palace was home to the Hindu “Bakou” who performed rites and rituals for the royal family. This social pyramid is reflected in the division of traditional Khm er society into three general categories: the sdech category, (royalty); the neamoeun montrey> (nobility, which is di­ vided into the neamoeun montrey thorn, or high nobility comprising the 1. Constitution du Royaume du Cambodge (Phnom Penh: Ministry of Information, 1963), pp. 1-24.

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dignitaries of ministerial rank, and neamoeun montrey toch, or lower nobil­ ity comprising lower level functionaries); and the reastr category (common people including the peasantry). This caste-like system in which conspicu­ ous deference is shown to one’s “betters” persists as social behavior among Khmer to this day.

Theravada Buddhism. The conversion of Jayavarman VII interrupted the old way of thought and encouraged change. Having become a devout Buddhist, the king introduced a “socialist” tradition into the empire through the provision of care for the poor and sick and the building of thousands of kilometers of roads and canals. The days of long, costly wars and conquests yielded to the establishment of a welfare system for the peo­ ple. Theravada Buddhism preached equality and extolled individual achieve­ ment, merit, and reincarnation. It espoused individual salvation through one’s own efforts and sought to achieve peace and tranquility within the human soul. For the Khmer people who had gone through much hardship imposed by the requirements of war and conquest as well as the endless building of temples and shrines, Theravada Buddhism had a special ap­ peal, encouraging individuals to improve their futures through their own work. Prince Sihanouk, the last divine and sacred Khmer god-king, writ­ ing on Theravada Buddhism as the Khmer state religion, said: It is because he [Lord Buddha] preaches all the virtues with which a citizen or a nation can adorn himself or itself for his or its greatest good, particularly on honesty, temperance, sincerity, pacifism, disinterest, altruism, and equality among all men and all castes . . . that we have elevated Buddhism to the rank of Religion of our State.2 The Buddhist notion of karma, which suggests that one will be rein­ carnated on the basis of one’s actions—good and evil— in the present life and that one’s present station in life is a result of past actions, has en­ couraged many Khmer to adopt a fatalistic outlook founded in their belief that all is predestined. The lack of control that many feel over their cir­ cumstances has doubtless strengthened animism as a religious belief sys­ tem in Khmer society.

Conflicts and Contradictions Hindu-Brahman influence taught the Khmer to accept the pyramid-like universe of the Devaraja in which the individual is an instrument serving this social order. This Khmer is patient, obedient, accepting, active, and 2. Recueil d’Editoriaux du Prince Norodom Sihanouk parus dans las revue, Kambuja , du No. 1, au No. 9, 1965, pp. 168-69.

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resolute. Theravada Buddhists taught the Khmer to seek salvation through his own efforts and to seek peace and tranquility within the soul. This Khm er is patient, peaceful, accepting, passive, disinterested, altruis­ tic, gentle, and a believer in karm a and reincarnation. From these philosophical-religious influences emerged active, combat­ ive, and resolute Khm er (the god-kings and warriors) who were also pas­ sive, complacent, and disinterested. Both religions have influenced the dichotomous Khm er to accept their roles and duties under the Devarajas for personal security and protection in the social order, and to accept fatal­ istically the good and evil outcomes of karma. The combined effect of the religious influences has resulted in a society that values and respects au­ thority, power, and command, and one in which the superior/subordinate relationships are authoritarian and paternalistic. When the French came to Cambodia in the 1800s, they introduced no­ tions of status, rank, and social mobility through secular education and economic achievement. Western education and values taught the notions of individual and societal development in this life rather than the next. The Khmer communists sought to turn the Hindu social pyramid upside down by transforming Cambodia into a proletarian state. They also re­ volted against Buddhism by seeking to transform the Khm er into masters of their own fate— independent, assertive, and self-reliant. It is with good reason that the Khm er are described simultaneously as valiant warriors and as peaceful, compassionate, gentle people. The histor­ ical influences of two great religious systems have caused both personali­ ties to be reflected in the national culture. The peaceful, gentle, placid, and tolerant Khm er have been capable of engaging in the terror and barbarism of the Khm er Rouge years and in the atrocities committed against Viet­ namese civilians at the outset of formal Cambodian involvement in the Vietnam W ar in 1970. The K hm er carry within them an ingrained mem­ ory of their early leadership in the Southeast Asian region, their capability, even invincibility. Although they have been in eclipse since the thirteenth century, the “tiger/w arrior” in them has reappeared at crucial moments when they needed to reassure themselves of their power. Pol Pot once said that if the Khm er could build Angkor during the period of slavery, they can do anything.

Generalizations on Behavior and Characteristics Intransigence. Theravada Buddhism teaches the Khmer to seek harmony in life, to be tolerant of others, to be accepting and conciliatory. Thus, the Khmer Buddhist is peaceful, compassionate, agreeable, and understand-

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ing. However, the Brahmanic influence has taught him to respect the so­ cial order of the Devaraja’s universe, which has no place for complacency, accommodation, or conciliation. The god-king does not negotiate nor pla­ cate; he seeks gain. He is the master of all existence and all must bow to him. Thus, in a given situation, the tiger/warrior in the Khmer pushes him to persevere and resist. On matters of importance, the Brahmanic influence works against agreement gained through negotiation and com­ promise.

Power, class, status, rank. Theravada Buddhism teaches the Khmer to seek peace and tranquility within the soul and to work in this life, not for material gain, but to achieve a better station in the next and it champions equality. But the contradictory Brahmanic influence is the source of the class consciousness that has been the dominant force in Cambodian social and political life, even in modem times. The monarchy has been the social thread that has entwined the Khmer throughout their history. Even after abdicating the throne and establishing the superstructure of a democracy, Norodom Sihanouk retained his princely title and effectively used the di­ vine monarchy to his political advantage. Social status continued to flow from the royal family during the Khmer republic. The Buddhist Khmer leader may acknowledge no ambition or interest in power, but his actions are more likely to reflect the god-king’s obsession with total control and absolute power. Corruption. Theravada Buddhism preaches karma—rebirth according to one’s merit. Selfishness and greed, it is said, diminish the individual. In the universe of the Devaraja, however, the end justifies the means. West­ ern concepts of corruption are merely standard operating procedure in a value system that tolerates any action undertaken in pursuit of absolute power. The powerful god-king expected to have his every whim satisfied, his every material and physical need met. No social or political favor would be granted without the offering of suitable gifts. Modem Khmer leaders may speak publicly against such aggrandizement, but the godking’s practices continue to be part of the social/political landscape in Khmer regimes to the present day. Loyalty and allegiance to leaders. The Khmer of the ancient empire owed complete loyalty and allegiance to the Devaraja. Although many modem, educated Khmer speak fondly of their people who serve ideals and con­ cepts—nationalism, patriotism, freedom, justice, democracy, and even communism or socialism. But in general, the Khmer listen to, and follow individuals to whom they owe loyalty and allegiance. Some Khmer opted to join the anticommunist resistance because its titular leader was their

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former king, Norodom Sihanouk. They may be attracted by ideals and philosophies, but usually the Khm er are not motivated to act by such ab­ stractions. For instance, many Cambodians joined the Khm er Rouge in the 1960s and early 1970s not because they were moved by a commitment to communism, but because the Khm er Rouge propagandists provided concrete information exposing the injustices and inequalities of the m onar­ chical system and of the republican regime that followed it. The K hm er Rouge portrayed themselves as willing and ready to put an end to the injustices. Passivity and conservatism. Buddhism has extolled the virtues of passivity and acceptance. In their conservatism, Khm er tend to avoid taking action, and they lack both the initiative and the confidence to take risks. This attitude diminishes the likelihood of compromise. They seek surface har­ mony. Until he is directly threatened, the Khm er will likely respond to any direction or request as “yes, it can be done.” W hether or not this “it” can later be fulfilled is not a m atter of concern for the moment, for it is rude and ungracious to say “no” to a request. But given a situation in which his well-being is threatened, the Khm er becomes an aggressive com­ batant, an inflexible negotiator, argumentative and uncompromising. He thus appears to vascillate between two extremes: either everything is “bat, ban” (yes, all right) or a line is drawn beyond which one will not step. Honor, face, dignity. To the Khmer, questions of honor and personal dig­ nity are of extraordinary importance. That which diminishes personal honor is unacceptable— “awt ban ” (cannot be done). The folklore is re­ plete with stories of those who sacrificed themselves because they failed to uphold the honor of family or country. Inflexible positions and uncompro­ mising stands are tied to honor and face. To yield diminishes honor; to compromise is a form of surrender. When compelled to accept an undesired end, the K hm er can have a long memory. Old wounds may be passed from one generation to another, long after the initial cause of the breach is forgotten. Some seek revenge to “cleanse” honor until their last breath. Action in spurts. Passivity and preoccupation with harmony and one’s spiritual salvation lead the Khm er to avoid taking initiatives. However, when the spirit of the Devaraja breaks out of their subconscious, the Khmer are spurred to action. But this energy is sporadic; they are easily frustrated if success is not immediate. The tiger is easily incited but ac­ tions lack continuity and consistency. Many modem Khm er compare en­ ergetic Khm er initiatives to straw catching on fire: strong flames that soon die down.

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Common traits. Customarily, the Khmer seek emotional equilibrium. Public expressions of emotion must be appropriately balanced, controlled, and timed and excessive displays are frowned upon. Some expressions of emotion, of course, are for effect in appropriate circumstances (e.g., politi­ cians, military leaders), but one who engages in excessive displays may be considered unstable. True feelings are personal and may be shared with intimates. A Khmer may be upset without expressing this. One endures, as one should be understanding, compassionate, harmonious. A Khmer pleases and placates; he may express agreement and depart with no inten­ tion of fulfilling that agreement. On the other hand, as Khmer are capable of controlling emotions and of suppressing true views and feelings, so they need to release what has been suppressed. A proverb says: Khmer sut trud moen chaol chae-chov (the petty Khmer do not let go of scandal).3 This means that after displaying one’s understanding, pleasing side, a Khmer may engage in exaggeration and rumors, revealing hypocrisy. Friendship with a Khmer promises to be long-lasting, especially when formed in time of need. The kindness will not be forgotten. Friendship breeds loyalty, and when friendship and loyalty are established, Khmer are prepared to help each other and even to die with each other. In a group, loyalty is established between leader and follower; in society, loyalty is established between the authority (the god-king or his representatives) and the people whose need for personal security and protection results in their acceptance of the leader’s power. Loyal Khmer follow their leaders and die for them so long as the bond between them remains strong—that is, so long as the followers perceive their needs to be fulfilled by the leaders. But once the bond is broken, disappointment and mistrust deteriorate into en­ mity and even betrayal. As their Buddhist philosophy urges individual salvation, so an individ­ ual Khmer’s orientation is toward self. The general populace attaches great importance to its autonomy and freedom, to live and let live without the nuisance of legal constraints. Passive, conservative, and individualis­ tic, a Khmer looks to the group only for support in what cannot be at­ tained by oneself. The need for personal security and protection requires that authority be accepted from above, and urges the Khmer to seek to belong to the group. In a time of crisis and high emotion, the Khmer turns to the group, and this is the time when individuals speak as “we.” As a group of people, the Khmer need leaders, but the spirit of the Devaraja dictates that there cannot be many god-kings at the apex of the pyramid. 3. Dictionnaire Cambodgien, 5th ed. (Phnom Penh: Institut Bouddihique, 1967). The Khmer sut trud, derived from smut trud, means deteriorating condition, trifling character, pettiness (vol. 2, p. 1,459); chae-chov means skill in speaking ill of others, or engaging in scandal (vol. 1, p. 204).

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It follows that if ten Khmer of relatively equal status are locked in a room, ten different factions are likely to emerge. Cambodia is a land of cliques whose members are bound by family ties, personal ties and favors, and work ties. The dichotomous Khmer are individual-oriented but seek the support of a group in times of need. Perhaps because they attribute life and their stations in life to karma and have a fatalistic outlook, the Khmer tend more than most to seek approval from others. While Brahmanism and Theravada Buddhism taught pa­ tience, endurance, and acceptance, nagging fear and concern of what the future may hold results in the need for constant reassurance from others that they are all right, doing fine, and will not be forsaken. There is a natural anxiety that they may be left to fend for themselves in a cruel and indifferent world.

Effects of War and Social Upheaval The size of Cambodia’s current population can only be estimated. There has been no official census since 1962, when the population was 5.7 mil­ lion, 83% of whom lived in rural areas. In subsequent years the country was ravaged by war and suffered the deaths of at least two million people during the Khmer Rouge regime (1975-78). Family life has been so dis­ rupted that normal childbearing patterns have not been possible. Most refugees in the border area camps are under 14 years of age; inside Cambo­ dia, the median age is estimated to be 18 years. A 1989 estimate of a population of nine million seems high to most observers, considering the unprecedented disruptions of the last 20 years. Prior to 1970, Cambodian government statistics showed about 90% of the population as ethnic Khmer, making Cambodia a country of rare eth­ nic homogeneity. It had, however, three generally distinct societies: the urban and semi-urban (around 17%), the village (80% were farmers), and the jungle (hill tribesmen). Among these were wide political, social, and economic differences. Aside from the demographic changes brought about by war and revolution, the settling of large numbers of Vietnamese nation­ als followed Vietnam’s occupation of Cambodia in the post-1978 period. The Khmer resistance has charged that these Vietnamese settlers may number up to one million, but until a peace plan is implemented and a new census undertaken, such figures are only guesses. This rending of the social fabric will surely alter the force of traditional­ ism in Khmer society. The preponderantly youthful population will have no memory of the past; the adults are far less educated in Khmer history and traditions than were their parents, many of whom did not survive the years of war and the Pol Pot period. The strong Vietnamese influence of the last decade must affect the teaching available to those inside the coun-

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try. The hundreds of thousands in refugee installations along the Thai border have been only haphazardly instructed in their history, culture, and religion. As with most societies, before 1970 the force of tradition became more apparent the further one moved from urban centers. The urban society consisted mainly of the “elite” corps of the country—government adminis­ trators and members of the commercial and professional classes. Charles Meyer wrote in 1971 that 95% of Cambodia’s ministers, secretaries of state, directors of major services, heads of private enterprises, and wealthy businessmen were Sino-Khmer or Chinese Cambodians.4 The 10% of Cambodia’s 1969 population that was not ethnically Khmer had influ­ ence greatly disproportionate to its numbers. Chinese, Vietnamese (mostly Christians), Cham-Malays (Muslims), and the hill tribesmen were the most significant of these minority groups. The urban Khmer society has lost many of its elite. Many were killed by the Khmer Rouge in 1975-78; others escaped to border areas and left for resettlement abroad, leaving only a handful to manage the country. According to reports from refugees, Khmer functionaries in Phnom Penh have been and are curtailed by Vietnamese policy-making supervisors in key government ministries including defense, interior, and finance. One Thai report said that “Vietnamese influence [is] much stronger now than before the troops withdrew” (in September 1989).5 The Khmer, then, might be assumed to be ill-equipped to manage their own affairs today. Expatriates may be needed to bring their expertise to their homeland, and others must be educated in the management of the government and the economy.

The Khmer and the Peace Settlement Given the Khmer’s steadfast resistance to compromise, it should not sur­ prise anyone that the two Jakarta Informal Meetings in 1988 and 1989, attended by leaders of the four Khmer factions and representatives of Viet­ nam, Laos, and ASEAN; the Paris International Conference (July-August 1989); the Tokyo peace talks (June 1990); the Jakarta and Bangkok meet­ ings (September 1990) have all ended in deadlock. Even though the major powers were conspicuously involved, the conflicting interests dividing the Khmer were such that no one Devaraja could sacrifice to achieve compro­ mise. With the warring Khmer factions unable to negotiate a settlement, the Permanent Members of the United Nations Security Council (Perm 4. Charles Meyer, Derriere le Sourire Khmer (Paris: Plon, 1971), pp. 22-23. 5. Bangkok Post, 30 September 1990.

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f i v e — China, France, Great Britain, the Soviet Union, the United States) devised a framework for a peace plan to bring the 11-year Cambodian civil war (1979-90) to an end and hold general elections. The Perm Five an­ nounced the plan in August 1990 and finalized the first draft on November 25. It endorsed the ASEAN-proposed plan for creation of a Supreme N a­ tional Council (SNC) comprising six representatives of the K hm er resist­ ance and six from the Vietnamese-installed Phnom Penh regime. The SNC, which would embody Cambodia’s sovereignty, would transfer ad­ ministration of the nation to the U.N., placing Cambodia under de facto trusteeship. Khmer faction leaders agreed to the framework of the plan as no Khmer faction would accept a dominant role by the others in adminis­ tering Cambodia. Although the U.N. plan describes the SNC as the na­ tion’s sovereign body, which would invite the U.N. to come into the country to establish order and prepare for a new government, many Khmer see it as surrendering their country’s independence and sovereignty to foreign personnel as though Cambodia were a colony or territory. The political differences among the factions are great and deep rooted, but the Khmer faction leaders have been willing to sacrifice the nation’s indepen­ dence and sovereignty rather than agree on power-sharing in a quadripar­ tite government of their own making. More compelling to them has been a perception that the Supreme National Council is not only an institution in which Cambodia’s sovereignty will reside until the conflict is resolved and a new government put in place, but rather an initial division of power and the precursor of the future Cambodian government; thus, the composition of the SNC becomes all important. Over the years, it has taken outside pressure to get the K hm er faction leaders to agree to meet in Jakarta and elsewhere and to set up the SNC. When the first SNC meeting was convened in Bangkok in September 1990, it adjourned in disarray over a dispute between the Khm er resistance and the Phnom Penh regime on the Council’s composition and the role of Siha­ nouk, leader of one resistance faction, as chairman. When the U.N. Gen­ eral Assembly session opened September 18, the SNC failed to designate a delegation to take Cambodia’s seat and failed to submit a delegation’s cre­ dentials by the deadline one month later. W ithout compromise on the composition of the Council or its chairmanship, no progress has been made to date on the U.N. plan. In this situation, which lacks, a priori, intent for the genuine national reconciliation that is the basis of the U.N. plan, and with these unyielding players, the U.N. faces the biggest challenge yet in bringing peace to Cam­ bodia. A peace settlement may have to be imposed on the Khm er by the international community. The Devarajas may not be happy with its terms, but cumulative pressure from the world body would ultimately give them

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no choice. The harmonious, accommodating Khmers are likely to say bat, ban without meaning it, and then sabotage the settlement. The Devarajas, each of whom is dedicated to his own dominance, could create difficulties in disarmament and the sequestering of troops under U.N. supervision, and could elude the dismantling of their respective secret caches of arms and war materiel. Violations of any ceasefire agreement may be antici­ pated, and in such a fearful, hostile atmosphere a small spark would be sufficient to incite the tiger/w arrior in the Khmer and cause civil conflict to engulf the country again. In spite of intensive international efforts to bring the war to an end, the fighting on the ground continues. Since August 1990, the Khm er Rouge have increased the transfer of war supplies to caches inside Cambodia. According to one report, Chinese-supplied trucks have transported mate­ riel to the interior, while hundreds of kilometers of supply roads have been bulldozed through thick jungle in northwestern Cambodia in what appear to be preparations for major offensives. China, a permanent member of the U.N. Security Council, and co-author of the peace plan, allegedly provided the Khmer Rouge with 24 T-59 battle tanks in September-October 1990.6 On its part, the SOC unleashed a “heavy offensive on several fronts” against the Khm er resistance forces.7 The resistance warned that the al­ leged Chinese-supplied tanks and captured Soviet-made T-54s would be used by its forces in offensive actions in the December 1990-May 1991 dry season.8 If an end to the war is an objective of the Perm Five’s peace plan, the logical necessary first step is for all foreign supporters to simultaneously terminate all arms aid and supplies to the warring parties. W ithout outside aid, the level and intensity of armed fighting would decline, and the prospects for a negotiated settlement would be more promising. Since Khmer faction leaders, acting on their own, cannot achieve a political so­ lution to their conflict, and since for more than a decade the factions have not attained military victory, an imposed peace settlement would be in the long-term interests of the Khm er people and Cambodia. W ithout such an 6. Ibid., 9 October 1990, and the Nation (Bangkok), 9, 11 October 1990. 7. Bangkok Post, October 1990. China, chief supplier of arms to the Khmer Rouge, and the Soviet Union, chief supplier to Phnom Penh, reportedly agreed in September 1990 that they would stop arming the Khmer factions. An October Bangkok Post report said the Sovi­ ets had affirmed they would stop shipments if other suppliers would also cease deliveries. The paper reported on November 16 that Chinese Premier Li Peng told Thai Premier Chatichai that China also would stop arms supplies to the Khmer Rouge if “all sides” agreed to do the same. Late in November, Chinese Foreign Ministry spokesman Li Zhaoxing said in his weekly press conference in Beijing that China has stopped supplying arms to the Khmer resistance forces (Reuter, reported in the Nation, 23 November 1990). 8. Agence France-Presse in the Nation, 29 October 1990.

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imposed settlement, there will be continued suffering; whether the U.N. plan will work as intended is a different issue. It is hoped that under a U.N. administration, Cambodia would have an extended period free from armed conflict and uncontrolled factionalism to enable the population to reacquire a national identity and a pride in itself through a U.N.-supervised general election that could introduce democ­ racy and democratic values to the country. The youthfulness of Cambo­ dia’s population works in its favor in this regard, as there is time for this generation of Khm er to make great strides forward. Reconstruction and “democratization” of a devastated Cambodia require peace and stability as well as many dedicated and educated mem­ bers of society. The Khm er intelligentsia has had its back broken, has splintered into many groups and factions, and is scattered around the world. It will take several decades before Cambodia can rebuild an edu­ cated class comparable to what it had before 1970. Although there are more Cambodians receiving education abroad today than ever before, the gap between the expatriates and those at home is ever wider. Centuries of philosophical-religious influences on Khm er culture and so­ ciety, and the generalized Khm er characteristics and predispositions that have evolved, have contributed much to the present K hm er tragedy. They make peace, stability, and democracy very difficult to achieve. From the time of its independence from France in 1953 until 1970, Cambodia made progress in many fields; since 1970 Cambodia has known only war, de­ struction, and suffering. All progress vanished. But from these years of tragedy there arises the hopefulness of youth. If the Khm er can restrain their self-destructive instincts during the crucial early years of rebuilding, even if that restraint needs to be imposed through the regulation of outside powers, there is every reason to expect that this new generation of K hm er can throw off the burdens of the past and move toward modernization and democracy.

[4] THE CHALLENGE OF CONFLICT RESOLUTION IN CAMBODIA

by Pierre Lizée

Much of the discussions about the broadening and en­ hancement of peace-keeping operations taking place in aca­ demic and policy-making circles stems from the publication of An Agenda for Peace, a report of the United Nations Secre­ tary General on "ways of strengthening and making more ef­ ficient within the framework and provisions of the Charter the capacity of the United Nations for preventive diplomacy, for peacemaking and for peace-keeping."1Indeed, upon its publication last year the report generated a great deal of en­ thusiasm through its suggestion that "the improvement in re­ lations between States east and west affords new possibili­ ties, some already realized, to meet successfully threats to common security."2 One of the aspects of the report which sparked the most in­ terest was its emphasis on peace-building, the attempt to "identify and support structures which will tend to strength­ en and solidify peace in order to avoid a relapse into con­ flict."' 'To be truly successful", the report argued, "peace­ making and peace-keeping operations must come to include comprehensive efforts to identify and support structures which will [...1 consolidate peace"4This attempt to add to peacekeeping operations a concern with the social structures and institutions which underlie peace meant, in fact, that peacekeeping was finally moving beyond the constraints im­ posed on it by the Cold War environment. Until the end of the East-West confrontation, peacekeeping operations, for all in­ tents and purposes, had aimed at preventing the escalation of regional conflicts in order to forestall the possibility of an intervention by either super-power and the rise in global ten­ sions which would have resulted from such a prospect. Now, the Agenda for Peace contended, peace-keeping operations could do more than simply help contain a given conflict: they Picnc Liíé* in j RcseiKh A*ri*UntM the Centre h>r/nternMionjl j/iJ $trjti$ii Studies i t \i>rk t/n h v n ity

September 1993

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could could address, address, and and indeed indeed resolve, resolve, the the problems problems \\'hich which had had led led to to that that conflict. conflict. The logic underlying the Cambodian Peace Agreement, The logic underlying the Cambodian Peace Agreement, concluded concluded on on 23 23 October October 1991, 1991, is is parallel parallel to to the the arguments arguments justify the which which were were put put fonvard forward to to justify the addition addition of of aa peacepeace­ building building component com ponent to to peacekeeping peacekeeping operations. operations. The The regional and at the regional and global global strategic strategic equations equations prevailing prevailing at the time time permitted the permitted the conclusion conclusion of of an an unprecedented!\' unprecedentedlv broad broad agreement to "military agreement which which added added to "military arrangements arrangements (\\'hose [whose objectives objectives were were J] to to stabilize stabilize the the security security situation situation and and build build parties to confidence confidence among among the the parties to the the conAict"' conflict"' aa massh·e massive rere­ habilitation and habilitation and reconstruction reconstruction program", program'’, aa set set of of measures measures placing the placing the most most important important "administrative "administrative agencies agencies bodies bodies and and offices" offices" (in (in Cambodia] Cambodia] "under "under the the direct direct control control of of UNTAC"', aa concern with "fostering UNTAC"7, concern with "fostering an an environment environment in in which rights shall which respect respect for for human human rights shall be be ensured"', ensured''*, and and propro­ visions on visions on the the creation creation of of aa "neutral "neutral political political environment environment conducive general elections:·• conducive to to free free and and fair fair general elections."" All All these these measmeas­ ures, it would transform ures, it was was hoped, hoped, would transform Cambodia's Cambodia's sociosocio­ cultural cultural environment environment in in order order to to make make it it more more conducive conducive to to the In aa word, the attainment attainment of of peace. peace. In word, they they would, would, to to borrow borrow from which will from the the Agenda Agenda for for Peace, Peace, "support "support structures structures which will tend to tend to strengthen strengthen and and solidify solidify peace:' peace." The The difficulties difficulties encountered encountered by by the the Cambodian Cambodian peace peace process, therefore, represents aa fundamental process, therefore, represents fundamental problem problem for for the the UN UN since since it it implies implies that that some some issues issues were were overlooked overlooked in in the the formulation turn, underformulation of of the the notion notion of of peace-building. peace-building. In In turn, under­ standing standing the the weaknesses weaknesses of of this this concept concept is is of of great great imporimpor­ tance because peacekeeping operations tance because many many peacekeeping operations based based on on the the same same pattern pattern are are now now contemplated. contemplated. In In consequence, consequence, this this paper paper will will try try to to analyze analyze the the evoluton evoluton of the UN UN operation operation in in Cambodia Cambodia and and will will then then highlight highlight the the ofthe improvements to to the the notions of peace-keeping peace-keeping and and peacepeace­ improvements notions of building building which which this this analysis analysis suggests. suggests. This This demonstration demonstration will will be be preceded preceded by by aa short short account account of of the the diplomatic diplomatic process process which led which led to to the the October October 1991 1991 peace peace agreement. agreement.

The Agreement The Paris Paris Peace Peace Agreement Nicolas Nicolas Regaud Regaud suggests suggests an an interestin~ interesting periodization periodization of of the the Cambodian conflict Cambodian conflict in in his his latest latest work'. work". According According to to him, him, the the conflict conflict can can be be divided divided in in three three phases. phases. The The first first of of these these phases Vietnamese invasion phases began began with with the the Vietnamese invasion of of Cambodia Cambodia in in December December 1978, 1978, and and ended ended in in 1986. 1986. A A complete complete stalemate stalemate prevailed at prevailed at the the extra-regional, extra-regional, regional regional and and local local levels levels of of the the conflict conflict during during those those years. years. The The speech speech given given by by Gorbachev Gorbachev in in Vladivostok Vladivostok on on 28 28 July July 1986, 1986, inaugurated inaugurated aa second second phase phase characterized characterized by by movement movement at at the the extra-regional extra-regional and and regional regional levels levels ofthe of the conflict. conflict. The The diplomatic diplomatic talks talks which which took took place place at at this at the this point point culminated culminated at the Paris Paris Peace Peace Conference Conference on on CamCam­ bodia held bodia held in in August August 1989. 1989. The The failure failure of of the the four four CambodiCambodi­ an Paris creatan factions factions to to reach reach aa power-sharing power-sharing agreement agreement in in Paris creat­ ed ed the the dynamic dynamic that that defined defined the the third third phase phase of of the the war. war. A A "phenomenon "1 "phenomenon of of relocalization relocalization of of the the Cambodian Cambodian conflict" conflict"1 that phase, phase, whereby became apparent became apparent in in that whereby the the extra-regional extra-regional and and regional regional actors actors of of the the conflict conflict settled settled their their differences differences and and cooperated formally informally to cooperated formally or or informally to pressure pressure the the CambodiCambodi­ ans into ans into accepting accepting some some form form of of power-sharing. power-sharing.

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The The negotiation negotiation process process within within each each of of these these periods periods reflected reflected the the strategic strategic equations equations which which prevailed prevailed at at the the time". The Vietnamese invasion of Cambodia in late tim ei:. The Vietnamese invasion of Cambodia in late 1978 1978 and teach to and the the '1esson" 'lesson" the the Chinese Chinese tried tried to to teach to the the Vietnamese Vietnamese in February and and March March of of the the follo\\'ing following year year created created in in the the in February first phase phase of of the the war war aa multi-level multi-level conflict. conflict. The The conflict conflict taktak­ first ing ing place place in in Cambodia Cambodia indeed, indeed, by by then, then, opposed opposed the the differdiffer­ ent ent Cambodian Cambodian factions factions to to one one another,but another,but also also Vietnam Vietnam to to the the countries countries of of ASEAN, ASEAN, China China to to Vietnam, Vietnam, and, and, fina:Jy, finally, the the Soviet Soviet Union Union to to China China and and the the United United States. States. The The turning turning point point came came at at the the Jakarta Jakarta Informal Informal Meeting, Meeting, held held injulv in July 1988. 1988. For For the the first first time, time, the the four four Cambodian Cambodian facfac­ tions tions sat sat at.the at the same same table. table. These These discussions, discussions, held held in in the the concon­ text text of of Vietnam's Vietnam's repeated repeated promises promises of of imminent imminent withdrawwithdraw­ al al from from Cambodia, Cambodia, put put the the dissension dissension among among the the CambodiCambodi­ ans ans at at the the centre centre of of the the search search for for aa political political solution solution to to the the Cambodian Cambodian conflict conflict.. The The concessions concessions which which were were being being made made at at the the extra-regional extra-regional and and regional regional levels levels of of the the conflict conflict did did not, not, ho\\'e,•er, however, translate translate into into mo\'ement movement on on the the CambodiCambodi­ an factions' part. Both the Phnom Penh authorities and an factions' part. Both the Phnom Penh authorities and the the members present themselves members of of the the CGDK CGDK continued continued to to present themselves as as the of Cambodia. the legitimategovernment legitimate government of Cambodia. This This situation situation effeceffec­ tively tively destroyed destroyed all all hopes hopes of of finding finding aa formula formula for for "national "national reconciliation" two sides. reconciliation" acceptable acceptable to to the the two sides. Further improvement improvement in Further in the the relations relations among among the the extraextraregional regional and and regional regional actors actors of of the the conflict conflict persuaded persuaded France France to to organize organize an an international international conference conference where, where, it it thought, thought, enough pressure could enough pressure could be be applied applied on on the the four four factions factions to to force force aa breakthrough breakthrough on on the the issue issue of of national national reconciliaton. reconciliaton. However, However, the the conference, conference, held held in in Paris Paris in in August August 1989, 1989, was was aa failure. failure. Neither Neither side side was was willing willing to to make make the the compromises compromises

necessan· necessary to to an an authentic authentic reconciliation. reconciliation. The The fundamental fundamental trait trait of of the the Cambodian Cambodian peace peace process process in in the the aftermath aftermath of of the the Paris Paris Conference Conference was was the the recognition recognition by by the the international international community community of of the the need need to to devise devise a a peace peace formula formula which which would would solve solve the the problem problem of of power-sharing power-sharing in in an an eventual eventual "government "government of of national national reconciliation" reconciliation" in in CamCam­ bodia. bodia. The The solution solution was was ultimately ultimately provided provided by by the the peace peace plan plan put put together together by by Australia Australia in in early early 1990."The 1990.n The way way out out of of

Cambodia

the constant dissension among Cambodians, the document argued, was to set them aside in order to let a peacekeeping force supervised by the United Nations create a "neutral po­ litical environment'' in Cambodia. This would in turn peritfit “free and fair elections”. All questions of power-sharing would be resolved at that point, a scrupulously democratic process having led to a new government whose legitimacy could not be questioned. The cause of the stalemate — who had the right to organize elections? — was in this sense finessed away. This peace plan provided the basis of the efforts of the five permanent members of the Security Council, which in turn led to the agreement concluded in October 1991. This agree­ ment was exceptional!)' broad in the sense that it provided for a complete transformation of the Cambodian socio-political traditions in order to reorient them toward more democrat­ ic practices. To the "military" and "police" components as­ sociated with numerous peacekeeping operations were thus added: • a "human rights component", giving UNTAC the "respon­ sibility during the transitional period [of] fostering an en­ vironment in which respect for human rights and fun­ damental freedoms is ensured." • a "civil administration component", giv ing UNTAC "direct control over existing administrative structures acting in the field of foreign affairs, national defence, finance, public security and information." • an "electoral component", giving UNTAC the responsibil­ ity of "the organization and conduct of free and fair gener­ al elections in Cambodia." • a "rehabilitation component", with " particular attention (...] given to food security, health, housing, training, edu­ cation, the transport network and the restoration of Cam­ bodia's basic infrastructure and public utilities." • a "repatriation component", dealing with "the movement of returnees, the provision of immediate assistance and food, and a reintegration programme."1* In the last analysis, the plan presumed that the stalemate over the extent and nature of a power-sharing agreement would be solved by reducing it to a practical question: How could "free and fair elections" be organized in Cambodia? In this sense, it took for granted that political problems could be transformed into technical ones. The fact that all the external parties to the conflict were in favour of a settlement at the mo­ ment provided the impetus which brought about the conclu­ sion of the peace accord. Sadly, it also precluded anv serious examination of these assumptions. The actions of the four factions cast doubt on their support of the UN effort as soon as it got under way. For example, the separate political alliances which were concluded between certain factions, such as the one established betw een the Sihanoukists and prominent figures in the Phnom Penh government, rendered the Cambodian Supreme National Council (SNC) totally meaningless. It was thus prevented from becoming the guarantor of a "neutral political environ­ ment" in Cambodia, as w as envisaged in the UN plans. The refusal of the Khmer Rouge to participate in the disarmament

83

phase of the peace plan and the unwillingness of the Phnom Penh government to cede control of many of its components to the UN personnel, finally, kept the organization from creating the conditions necessary to a "neutral political en­ vironment", before and during the May 1993 elections. A close examination of the Cambodian peace process since 1989, in fact, reveals not so much the success of the interna­ tional community in forcing the Cambodian factions to ac­ cept the peace plan devised within the Paris framework, but the four factions' lack of commitment to the basic principles of that plan. Conversely, all the problems encountered in Cambodia don't represent the quasi-failure of the October 1991 agreement so much as they demonstrate that the hope of achieving national reconciliation in Cambodia on that par­ ticular basis was illusory.

Evolution of the Peace Framework I would contend that the Cambodian factions have refused to participate in the conflict resolution procedure elaborated in Paris because their attitude toward conflict differs fun­ damentally from the one which has underlain that negotia­ tion framework since its inception. The four factions' views on conflict, I w'ould argue, are a function of Cambodia's sociohistorical development, and they could not be reconciled with a process whose logic, through seen as appropriate by its proponents, rested on presuppositions about conflict reso­ lution correct only in the Western context. Let's look at this ar­ gument in more detail: The type of institutional-legal framework found in the West defines and reduces organized violence because it permits the articulation of conflict on political structures rather than through the resort to force. It is able to do so essentially be­ cause it is clearly linked to a set of socio-political traditions and historical antecedents which give it meaning and pow­ er. However, this movement from a violent form of conflict to a non-violent, institutionalized one, is absent from Cambo­ dian history and traditions. Why? A quick study of the partic­ ular trajectory of state and capitalist development in Cambo­ dia and of other factors such as the influence of Buddhism and Brahmanism1' is necessary to answ'er that question. Anthony Giddens' distinction between the "nation-states" of the West and the "state-nations" created in the Third World "upon state apparatuses originally established b y ... coloniz­ ing societies"1’’ is helpful, first, in outlining the trajectory of state and capitalist development in Cambodia. The imposi­ tion of administrative and legal structures during the French colonial period bypassed the slow processes of popular mobilization and integration which in the West have estab­ lished a tension between the power of these structures and the development of individual and social rights. The power of "elites aspiring to and then holding state power"17 was thus unchecked by the notion of political legitimacy. This phenom enon was superimposed over the social framework created in Cambodia by the influence of Brah­ manism. "The I lindu Brah manic cult", A bdulgaf far PeangMeth tells us, "describels] life in terms of a pyramid-like sys­ tem at the apex of which [is] the god-king, Devaraja, w ho

September 1993

37

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Cambodia Cambodia

[acts)as be[actsjas an an intermediarv intermediary be­ The The conHict conflict management management tween tween the the gods gods and and aa s;,cial social pnicedull.'S pnxredures aniund annind which which the the order that that propound[s) propou nd!*] order l\1ri~ Paris pn•.:e~~ process \\'itS was de\-elnped, developed, \\'ell-defined w e ll-d e fin e d class/stac la ss /s ta lwweYer. however, nen?r never addressed addressed tus/rank/role tu s/r a n k /r o le relationr e la tio n ­ this this understanding understanding of of the the nana­ ships". " Those Those sitting sitting on ships"." nn ture ture of of Cmnbodian Cambodian politics. politics. top top of of the the "pyramid-like "pyramid-like syssys­ The The ten~il1ns tensions llppnsing, opposing, on on tem" the tem" in in Cambodia Cambodia ha\'e have thus thus the ,,rw one hand, hand, the the institutioninstitution­ always power aliz,1tion always defined defined their their power alization uf of conflict conflict and and politpolit­ by referring by referring to to "wdl-,iefin,•d "well-defined ics ics pmf'conom it and Political W eekly

O ctober 28, 1995

429

Cambodia Neighbours on both sides are planting on her land. The family on one side has planted banana trees one metre inside her land. She says that even if she complained, they did not listen, because she is poorer. She could not win the village comm ittee’s support since she could not afford to invite them for meals and drinks. She wanted to plant a fen ce around the border, but the neighbours were against it, saying that it would lead to shade on their lands. She does not have enough money to construct a fence around her land. She is now thinking of taking the case to the district office. Land conflicts theoretically should be taken to court. The district land registration office does not have any legal power to settle disputes. Normally, however, they are resolved at village ch ie fs level. The land registration office said that land disputes in this area arc not yet bad compared with Kampong Spcu province; however, they had received a number of cases. D y n a m ic s o f I m p o r t a n c e o f L a n d

According to several o f our interviewees, rich people are those who have more men, more cattle, more machines, more pumps and more land. If they have more labour power, they can clear/cultivate more land, so they become rich. Having more labour power and draft animals is more important than having more land, since if they hire a pair of cattle and person to plough for one day, they have to pay back by transplanting for them for three days. This will delay ploughing and transplanting on their own land. Cattle are useful for other incom e generating activities too. For example, for cutting wood, cattle are needed for transport. It seems that land is not considered as important as draft animals here. Because o f the small plots o f land and because most o f the villagers can cultivate rice only once a year, the harvest often fails to feed the whole family. Only a few cultivate the land twice. One respondent said that it is easier to take vegetables to sell in the market in Phnom Penh rather than doing farming by themselves, so she thinks it better to give up the land and go in for small business. She owns farming land, but is not farming. Since there are on ly w om en in the household, she says that it is difficult to farm. She rented out the land to a person whose land is near hers. Her land is more than 7,840 sq m and she receives 4,000 10,000 riels per year, which she thinks is not much. Mortgaging land is not yet much practised here. In case of loans, moneylenders do not demand a mortgage if the amount is 20,000 - 30,000 riels, which is often the amount borrowers need. However, the district land registration officer said that there are many

Econom ic and Political W eekly

conflicts arising from land mortgage. The village headman said that earlier, people with more animals were richer than those with more land, but now it is changing. People who have more land especially along the road are much richer than those with more animals, since they would be able to sell the land at a high price.

Ill Intertwining of Land and Gender Issues In the household, woman is the manager and money keeper. W ife and husband discuss about expenditures. But, if they disagree, the husband usually has the final say. If it is not a female-headed household, normally, the husband takes the decision on selling/buying land. In this village, some men help in household work, such as cooking, carrying water and child caring. Women also dô jobs that are usually considered men ’s jobs, such as cutting wood for sale. When asked when is the slack season, women seemed not to have any slack season in terms o f working intensity. Basically, the child that looks after old parents inherits the land. Some said that parents prefer to give more land to daughters because they are the ones who will take care o f them when they get old. One respondent said that generally who inherits the parents’ land depend on the parents’ feelings towards their children. The land regulation states that each village should have 1-2 hectares o f land reserve for demographic change and newly formed families. This, however, was rarely practised. The viiiage headman said that there is no land reserve left for new families. Though land was distributed in terms o f the number o f fam ily members, only husband and w ife signed the land title deeds. When children grow up and set up their own families, parents have the right to decide to give or not to give a portion of land. Since parents’ land is already small in size, it is difficult to divide it among many children. Thus, many newly formed families are often landless. In case of spouse’s death, the land will belong to the widow(er). Even if she/he gets remarried, the new wife/husband is not entitled to land. However, this cannot resolve the conflict between the new wife/ husband and the first w ife/husband’s children. Cambodian women have always been enjoying legal land rights. In ancient times, women were entitled to land even when they got divorced. At present, if the land is registered in both husband’s and w ife’s names, legally the land should be divided equally between the couple. In the village, some respondents said that in case of divorce, land should be

O ctober 28, 1995

divided between the couple; some said that it should be with the mother since she is the one to take care o f the children. In practice, if the couple has been living by them selves, in case o f divorce, usually the husband will go out o f the house, leaving the land to the wife and children. Other properties can be divided between the couple. However, if the couple has been living with the parents of the husband, then the wife will have to leave the house with the children, but without land and without any com pensation from the husband. Divorced husbands rarely send money to support children. One woman who has recently divorced her husband, has come back to her parents’ house with four children and without any property. The parents’ house already has her sister and her family living together, and it was obviously overcrowded. The condition o f divorcees, especially divorced women needs to be looked into.

IV Conclusion In the surveyed village, there are many landless and some who have small plots o f land. There are possibilities for increasing the total land available by developing the waste lands. However, the ownership and restrictions on the use o f these lands were not clarified in this study. There are some land transactions going on and the effect o f selling land does not seem to be negative but on the contrary seems to be positive so far. Money from selling land has been used for investment in other income generation activities. It is not very difficult to do this, since the area is near Phnom Penh and there are relatively more incom e generating opportunities. However, there is still a need to verify this point, especially for the poor who do not have the skill to start a small business. There is need for more skill training and provision o f capital in order to increase the o p p o r tu n ities for non-farih in co m e generation. One point on which there is confusion is the difference between ownership and possession. Even though farming land is given only on possession, people take it as meaning ownership. It is still not yet clear what will be the implication o f this confusion. Is there any possibility o f farmers losing land because they are not clear o f their rights to their farming land? Is there a difference in understanding betw een farm ers and au thorities on registration? A small patch o f land is indeed the base of most poor farmers. In the capitalisation process o f natural resource, land is taken as the precious property for survival and emergency. However, not much can be

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430 done with the land if the small land holders depending on farming do not have credit, infrastructure and marketing facilities, access to farm inputs and services and local organisational supports. Cambodian women’s experience has strengthened this argum ent. P eop le see other in com e generation sources as more lucrative, since the productivity of the land is not high, especially with the lack o f the above support. From the information given by the district land registration office, it seems that the conversion from farming land to residential land is possible with provincial approval. And in fact if the farming land is not far from the village, people are likely to occupy farming land for house const­ ru ction. In this c a se , it is p o ssib le that farming land near the village will gradually be turned into quasi-residential land and then sold. Common land is also a concept that has to be clarified further. People say that there is no common land, but who owns the Hooded or grassy waste lands? Forest is stale land, but how much access and control do the people have? How about water bodies?

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Cambodia As far as w om en ’s land rights are concerned, we can see two major problems. One is the procedure and regulation of selling land. Theoretically, when land is sold, all people under whose name the land is registered have to sign the ownership card in order to transfer the land title. However, it seems that implementation o f this regulation is loose, and that it is acceptable to sell/buy land with only one o f the owners’ signature. This will definitely place women in a more disadvantageous position, since men have more decisionmaking power in the household, and it is easy for them to sell the land without the consent of their wives. If a woman is not given a share from the sale proceeds o f the land, it is likely that she will not have any secure source o f living. A stricter regu lation o f sign atu res has to be implemented. Another problem for women is that of land rights in a conflict situation. When a couple is divorced, the district office and som e w om en say that all properties including land should be divided equally between the couple. However, since it is usually woman who takes children along with her, it is not fair for her to have only

half the share o f the property. If she is liv in g with her parents-in-law , most probably she will leave the house with children without any means o f making a living. A woman whose husband left the house seem s to be better-off compared with other cases o f divorce. She is more independent and confident. But awareness raising, self-assertion, confidence building, creating bond among women and support system are necessary for women in conflict situations to have a stronger say in the sharing o f property.

References Banez, Jane C, (1992): Baseline Sun’ey: Muk Kampoul District. Kandal Province. State o f Cambodia. Primary Health Care Project,

C1DSE, Cambodia. Chandler, David P (nd):