memo from bora touch to hm sihanouk on maritime borders (2004)

8/7/2019 Memo From Bora Touch to HM Sihanouk on Maritime Borders (2004)

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Lekhet ChamhorBora~ 'l'ouch Esq

Preah Kakruria JUTl.c 2004.

5 June 2004His MajestyPreah Bat Samdech PreahNorodomSihanouk VarmanSecretariat of His MajestyKing Norodom SihanoukKing ofCambodiaChhang Su Won Palace, PyongYangPeople's Democratic Republic ofKorea

Your Majesty,May it please Your Majesty.It gives me and my family a great pleasure to know that Your Majesty andHer Majesty are in good health, despite Yours Majesties' profoundconcerns about the current affairs of the Kingdom.Once again, I wish to extend my gratitude to His Majesty and theSecretariat of Your Majesty for continuing regularly to send me theBulletin Mensuel de Documentation and the videotapes on Your Majesty'sCrusade for Independence and Your royal activities. These documents areutmost historical importance.In case Your Majesty have not seen it, I attach relevant portions of a bookand articles by noted scholars Dr. Victor Prescott, The Gulf of Thailand(1998),Dr. Victor Prescott and Dr. Clive Schofield, "Undelimited MaritimeBoundaries of the Asian Rim in the Pacific Ocean," Maritime Briefing Vol.3(1)(2001)which provide insight into the current border issues.Permit me, Your Majesty, to raise additional concerns about thedetermination of the boundaries of the Kingdom, especially the maritimeboundaries. Set out below is a summary ofmy concerns.1. THE MARITIME OUNDARYWITH THAILAND.1.1. I have now had an opportunity to survey important published works

of scholars, experts and legal advice by international lawyers to theRoyal Government on the overlapping claims in the Gulf ofThailand.

1.2 As far as I am aware, all of these scholars are of the opinion thatthe Declaration by the Royal Government of Your Majesty ofSeptember 1969 and Decree of July 1972 cannot be justified by the

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Lekhet CharnhorBora Touch

Preah Kakruna .June 2004.French-Siamese Treaty of 23 March 1907 and its attached Protocol.They argue that the 1907 treaty and the Protocol do not mean todelimit the maritime boundary between the island of Koh Kut andthe Khmer-Siamese land boundary.

1.3. The Khmer scholars, HRH Prince NorodomRanariddh, Les LimitesDu Domaine Maritime Du Cambodge (Paris 1976) and Prof. KhimChun Y, Le Cambodge et Ie Problem de L 'extension des EspacesMaritimes dans le Golfe de Thailand, (Paris, 1978), do not believethe boundary claim of 1972 is justifiable under the 1907 Treaty andClause 1 of the attached Protocol.

1.4. However, Dr. Khim Y argued that although the Khmer claim of1972 could not be justified on the basis of the 1907 Treaty, becauseKlongYai Bay belonged to Cambodia prior to that time and was notexclusively exploited by the Siamese until 1907, Cambodia canmaintain its claim of "historic title" or "historic frontier" over the3,000 square kilometers of the Bay's waters. It is this "historictitle", Prof. Khim Y argues, that creates the "special circumstance"which forms the basis for Cambodia to delimit its territorial seaboundary as it did in 1972. Dr. Khim Y was a member of theCambodian negotiation team along with H.E. Sea Kosal, formerDirector of Legal and Consular Department of the Ministry ofForeign Affairs and Member of the National Border Commission onLegalAffairs.

1.5. Some western scholars, such as Prof. Dr. Victor Prescott, maintainthat the Khmer 1972 claim against Thailand is incorrect because itis justified by neither the 1907 Treaty nor Clause 1 of the Protocol,which states that the boundary between French Indochina andSiam "leaves the sea to a point opposite the highest point of KohKut island. From this point it follows a north easterly direction tothe crest of Phnom Kravanh". According to Dr Prescott this was notmeant delimit the maritime boundary: Dr. V Prescott, Map ofMainland Asia by Treaty (1975), V Prescott, Maritime Jurisdictionin Southeast Asia: a Commentary and a Map (1981), V. Prescott,The South China Sea: Limits of National Claims (1996),The Gulf ofThailand: Maritime Limits to Conflicts and Cooperation (1998), VPrescott, Frontiers of Asia and Southeast Asia (1977),VPrescott, AStudy of the Delimitation of the Thai-Cambodian Boundary (1985),and VPrescott, The Maritime Boundaries of the World(1985).

1.6. The same arguments have been made by other scholars includingDr. Clive Schofield from the United Kingdom, Maritime BoundaryDelimitation in the GulfofThailand (1999), "Undelimited MaritimeBoundaries of the Asian Rim in the Pacific Ocean" (2001); and bythe Maritime Boundaries of World by General Dynamics AdvancedInformation Systems (Veridian, Virginia USA)(May1998), and byM

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Lekhet Chamhor Preah Kakruna .June 2004.J Valencia, South-East Asian Seas: Oil Under Troubled Waters,(1984)etc.

1.7. Because Dr. Prescott has been a leading member of thegeographical and international law consultancy group (fromAustralia) for the Royal Government of Cambodia on maritimeaffairs with Thailand since the mid-1990s, I can safely assume thatthe international lawyers/consultants of the same group are of thesame opmion on the sustainability of the Khmer 1969/1972boundary claim.

1.8. The Thai scholars, Capt. Thanom Charoenlaph, "The maritimeBoundary Problems of Thailand" (1985), and Dr. KriangsakKittichaisaree, The Law of the Sea and Maritime BoundaryDelimitation in South-East Asia (1987) have attacked the Khmer1969/1972claim.

1.9. It appears that Dr. Kriangsak's argument has been thefundamental basis of the on-going Thai official argument mountedagainst Cambodia's claim based on the 1972 boundary. Untilrecently, Dr. Kriangsak was the Bureau Chief at the TreatyDepartment of the Thai Foreign Ministry.

1.10. Dr. Kriangsak has a three-pronged argument:1.11. Prong 1:He argues:

"According to the Franco-Siamese Treaty of 23 May [March]1907, France ceded to Siam, inter alias, every island south ofthe Cape of Lemling 'jusque et y compris Koh Kut' ('as farand including Koh Kut') or Kut island. Cambodia, as asuccessor to France, has never disputed Thailand's (orSiam's) sovereignty over Kut island. Problems arise out of theProtocol annexed to the 1907 treaty, which stipulate, interalias:Clause 1. '...The frontiers between French Indochina andSiam starts from the sea at a point opposite the highest pointof the island of Koh Kut. From this point it follows a north-easterly direction to the ridge of'PnomKrevanh ..."

1.12. He adds:"However, the 1907 Franco-Siamese Treaty merely identifiesthe point of the land frontier between Siam and Cambodiawhich ends at sea (Point 73). It has no intention of allocatingthe intervening sea areas between that point and Kut island,some 19 nm or 32 km away. The Sihanouk and subsequently

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Lekhet Charnhor Preah Kakruna .June 2004.the Lon Nol governments of Cambodia in the late 1960s andthe early 1970s insisted that the 1907Treaty also allocated toCambodia the maritime areas between Kut Island and Point73 of the land frontiers (Cape Lem Saraphat Phit). Theyrelied on the wording 'start from the sea' to justify theircase."

1.13. He further states:"Thailand has been insisting, though, that this clause mustbe read in the context of 'Clause I as a whole. It stresses thewording 'From this Point [i.e. Point 73 which ends at sea] it[the frontier] follows a north easterly direction...' In otherwords, the frontier which terminates at the sea at the pointopposite the highest point of Kut Island extends upward tothe ridge of Pnom-Krevanh, without any mention of theallocation ofmaritime areas to any state": p. 37.

1.14. Prong 2. He argues:"At any rate, [if Cambodia was correct in its claim] such aproviso would not accord with the primary legal principleenshrined in the decision of the Permanent Court ofArbitration in the Grisbadarna Case. [In this case the Courtheld thad ... 'we must have recourse to the principles of lawin forceat that time'.

1.14. He adds:"...The cardinal legal questions are, therefore, as follows.What was the state of law at the critical date? What was themaximum breadth of a seaward extension of a coastal State'ssovereignty/jurisdiction! rights up to the high seas?"

1.16. He further states:"When France and Siam concluded the Treaty of 1907, theinternationally accepted territorial sea limit was 3 nm.Beyond that limit was the high seas. Hence, the 1907 Treatycould not have legally automatically divided the 19-nmmaritime span between Kut Island and the terminus of theland frontier between Siam and Cambodia."

1.17. He adds:"Phrased differently, France could not transfer to Cambodia,its successor to the 1907 Treaty, more rights than Franceitself possessed. Nemo dat quod non habet ..:no man can giveanother any better title than he himself has. The

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Lekhet Chamhor Preah Kakruria .June 2004.Grisbadarna reasoning is also applicable to the 'Brevie Line'":p.41

1.18. Prong 3. He argues:"...The word 'Koh' itself, which means 'island' is of pure Thaiorigin...Cambodia has no legitimate right to claim a 'historictitle or frontier' as special circumstance to delimit thecommon territorial sea boundary with Thailand as it did in1972. On the contrary ...the island further east, includingKoh Kong and all the Cambodian islands with the namebeginning with 'Koh,' should have been claimed by Thailand,and not Cambodia." P54.

1.19. According to a high ranking official of the Mixed Committee forBorder Affairs of the Royal Government, because of theinternational law and geographical consultants' advice, the RoyalGovernment is considering accepting the boundary line between the1972 claim line as hypothesized by Dr. Prescott in his The Gulf ofThailand: Maritime Limits to Conflict and Cooperation, p.51.(please see Map attached)

1.20. In my submission, the arguments and advice by the abovescholars/experts, be they Khmer, Thai or Western, in light of theavailable supporting evidence, are not correct both in fact and inlaw.

1.21. My focus is on the argument by the Thai scholar, Dr. KriangsakKittichaisaree:

1.22. As to the Prong 1, Dr. Kriangsak is incorrect to state that the 1907Treaty and its annexed Protocol did not mean to delimit theterritorial sea boundary between Koh Kut and the land boundaryterminus. When Clause 1 of the Protocol stipulates that "Theboundary between French Indochina and Siam leaves the sea to apoint situated opposite the highest point of the Koh Kut island", itliterally means just that, that the boundary starts from the highestpoint of Koh Kut and ends up on the coast or the land boundaryterminus.

1.23. Of note, while the translation by Dr. Kraingsak of the French term"en un point" is "at a point", in my opinion, a more correcttranslation is "to a point". The correct translation is "The borderbetween French Indochina and Siam leaves the sea to a pointopposite the highest point of the Island of Koh kut." If Dr.Kriangsak had so translated the term "en", this might have changedhis whole argument.

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Lekhet Chamhor Preah Kakruna .June 200,4.1.23. Evidence which clearly supports the argument that the border

starts from the highest point of Ko Kut and ends at the coastopposite that point is the Minute of the [Second] Meeting of theMixed Commission [the French-Siamese Commission forDelimitation of Frontiers Between Indochina and Siam], under theTreaty of 1907,8 February 1907.

1.24. The Minute expressly states:"...the Protocol stipulates that 'the border --- from the sea to apoint situated opposite the highest submit of the island ofKoh Kut...The highest summit of Koh Kut, after instructionsand after marine map that the Commandant present to theCommission, is the North summit. But yet, in tracing,following the latitude of this summit, a line ends at thiscoast".

1.25. The Minute further states:"As for the extreme southern border, determined by a linestarting at the highest summit of KohKut and ending at thefront at a point of the coast... Now the crest line ends at thesea in a cape situated at the northern extremity of the bay ofO'piam and it is this point approximately in front of thehighest summit of KoKut that the General had the intentionof adopting"

1.26. In addition, the 1:200,000 scale map attached to the 1907 Treatyclearly shows the straight boundary line between Koh Kut and thecoast. The line drawn on the map illustrates that the border is, infact, as set out in Clause 1 and the Minute of 8 February 1907, thatis, starting from the highest point of Koh Kut and ending at thecoast and then goes north.

1.27. The Minute was agreed and signed by members of the Commission:Gen. Prince Bovoradej, Phya Petr Kamheng Songkram, PrinceTraidos and Luang Suratudh for Thailand, and CommandantGuichard Montguers, Mr. Paul Petihuguenin, Dr. Cloite for France.

1.28. In addition, the United States Department of Defense states clearlyin its Maritime Claims References Manualissued January 1997 andupdated on 2 April 2001 that the territorial sea boundary betweenCambodia and Thailand was delimited under the March 1907Treaty: p 71 and p. 578, respectively.

1.29. As to Prong 2. Dr. Kriangsak's argument based on principle ofGrisbadarna Case is dated and irrelevant as far as the overridingdoctrine of uti possidetis (that is, boundaries drawn by colonial

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Lekhet Chamhor Preah Kakruria .June 2004.powers by treaty or administrative division become the recognizedboundary after deeolonization) is concerned. Itmay be correct thataccording to international law at that time, the internationallyaccepted territorial sea limit was 3 nautical miles, however,according to international law precedents, based on the doctrine ofuti possidetis, the law (3 nautical miles) applicable at the time ofdelimitation is irrelevant nowbecause uti possedetis overrides whatwas then the accepted territorial sea.

1.30. The case of Guinea-Bissau v Senegal (1989. 83 ILR 1) has a factualcontext that is almost the same as Cambodia-Thailand dispute. Inthat case, France was the colonial authority of Senegal andPortugal was the colonial authority of Guinea-Bissau. On behalf oftheir respective colonies, France and Portugal exchanged notes on 6April 1960 (the exchanges notes constituted a treaty, although noactual treaty was concluded). Senegal gained independence on 20August 1960 and Guinea-Bissau became independent on 10September 1975.After the colonies gained independence, a disputearose between the two states regarding the delimitation of theirmaritime territories.

1.31. The main issue was whether the old agreement of April 1960 (bythe colonial powers, France and Portugal) had the force of lawbetween the parties now. In other words, does the doctrine of utipossidetis apply to the April 1960maritime agreement?

1.32. Similar to Dr. Kraingsak's argument, Guinea-Bissau argued beforethe international tribunal that the uti possidetis principle did notapply to maritime boundaries.

1.33. The Tribunal rejected Guinea-Bissau's argument and held that:"An international frontier is a line formed by the successiveextremities of the area of validity in the space of the norms ofthe legal order of a particular state. The delimitation of thearea of spatial validity of the state may relate to the landarea, the waters of rivers and lakes, the sea, the subsoil orthe atmosphere. In all cases the purpose of the relevanttreaties is the same...to determine in a stable and permanentmanner the area of validity in space of the legal norms of thestate. From a legal point of view, there is no reason toestablish different regimes dependent on which materialelement is delimited ...": Para. 38

1.34. The Tribunal accepted the April 1960boundary line which extendedfrom the territorial sea limit, even though the line from theterritorial sea toward the high seas was not clearly defined in theExchange ofNotes.

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Lekhet Charnhor PreahKakruna .Jnne 2004.

1.35. The unclear definition was noticed by the US Department of State:"the outer limit of the continental shelf boundary is notclearly defined in the Exchange of Notes. The boundarybetween the respective shelf areas is considered to be thestraight-line extension of the territorial sea boundary. Thisextension is depicted in the attached map by a dashed redline." : US Department of State, Limits in the Seas, 15March1976,No. 68, p4.

1.36. For the tribunal, that did not matter. The line had been drawn andthat where things ended.

1.37. Subsequent international caselaw reinforces the fact that the utipossidetis does apply to the maritime boundaries left behind by thecolonial authorities, for example, in the case El Salvador vHonduras (1992, Int'l Court Justice Report).

1.38. International law scholars are in agreement that the uti possidetisprinciple is applicable to maritime boundaries: C. Antonopoulos,"The Principle of Uti Possidetis Iuris III ContemporaryInternational law," H.H.D.! 49 (1996) p.29,T. Bartos, "UtiPossidentis. Quo Vadis," A. Y.B.LL (1997) p.36, M N Shaw, "TheHeritage if State: The Principle of Uti Possidetis Juris Today"B. Y.LL b (1996-7)76.

1.39. Accordingly, it does not matter whether the rule then was 3nautical miles or 12 nautical miles from the shore. So long as themaritime boundary had been delimited, the delimitation orboundary will be recognized under the principle of uti possidetis.Dr. Kriangsak's argument on this point is therefore incorrect.

1.40. As such, the Grisbadarna Case does not apply to the Brevie Line asDr. Kriangsak asserts.

1.41. As to Prong 3 of Dr. Kriangsak's argument, that is that the term"Koh" is a "pure" Thai word and thus all Khmer islands with theterm "Koh" should have been claimed by the Thai, this is anabsolute nonsense.

1.42. As far as evidence is concerned "Koh" is a Khmer term which theKhmer have used long before the Thai occupiedwhat is present-dayThailand. The terms Kok, or Koh were used in pre-Angkor andAngkor inscriptions: K 664, K 755,K262;K754, K 31.

1.43. Perhaps to Dr. Kraingsak's shock, the term "Kut"which was used toname Kut island -- Koh Kut-- is also a Khmer term: Inscriptions

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Lekhet Charnhor PreahKakruna .Iune 2004.K129 and K 719, as cited by Prof. Long Seam, Dictionary ofAncientKhmer: (Jth-ath Century, (2000), Phnom Penh, p.121.

1.44. The term "Koh"was also used in the 16thcentury Khmer (Buddhist)cosmologicalmap, the Trai Phum, (or the accounts of the 3 worlds);for examples: Koh Langka, Koh Sanghal, Koh Prav, Koh Ram:Kumpi Trai Phumi, reprinted byDr. Michel Tranet, Phnom Penh. Itis known that Buddhism had been in Thailand before the Thaiarrived there, and Buddhist written (Khmer) texts were importedfrom Cambodia (or they may have been there already by the timethe Thai first colonized Sukoth'ai of Khmer): (also Lt-Col, JamesLow, "On the Ancient Connection Between Kedah and Siam,"Journal of Indian Archipelago (1852),p 509).

1.45. It is a fact that the Thai are the colonizers of the western part ofKhmer land. A. Lamb correctly pointed out:

"peoples like...the Thais are now looked upon in the west asbeing indigenous to South-east Asia. It is not generallyknown that they came to the region as colonizers, oftenestablishing a minority rule over subject peoples whom theyhad conquered": (Lamb, Asian Frontiers, (1968), p 40).

1.46. Furthermore, if words (of place names) in a language meanownership, then the Thai have a lot to worry about. Because wordssuch as "Kurung", which means "King" or "city", is also a Khmerterm, according to a 5thcentury Inscription K451, as cited by Prof.Vong Sotheara in his Inscriptions of Cambodia before Angkor, 2003,Phnom Penh, p124. Thus, to adopt Dr. Kraignsak's theory, KrungTep (Bangkok) Krung Sri Ayudhia, should be claimed by Cambodia.

1.47. Additionally, a coastal place called "Kok Phanon Di" in Chonburyprovince is a known pre-historical archeological site: C. Higham &R. Thomsarat, Prehistoric Thailand: From Early Settlement toSukhothai (1998) p45). The three words - Kok Phanon Di-- are acorruption (by the Thais) of the Khmer words of Kok Phnom Dei:(Prof Long Seam, Khmer Toponymie, (1997),p 89.

1.48. Moreover, some of the names of some Khmer provinces in what isnow Thailand mentioned by one of King Jayavarman VII sons,Prince Virakkumara in his 12thcentury inscription, have not evenchanged until today; for examples: Lavodayapura (Lopburi),Svarnapura (Suphanburi), Jayarajapuri (Ratburi), Jayasimhapuri(Muang Sinh); and Vimayapura (Phimai): Charles Higham, TheCivilization of Angkor, (2001)

1.49. By the time the Thai began to colonizefrom their "state" Nan Chau,now Southern China, to conquer the Khmer Sokut'ai province in

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Lekhet Chamhor Preah Kakruna .June 2004.about 13thcentury, they had (in my view) a rather vague cultureand tradition of their own, and, as a result, they adopted almostentirely aspects of Khmer culture and tradition. Nor did they havetheir ownwritten characters. In the 14thor 15thcentury, they had tosimplify the Khmer written characters, as a 19thcentury observerBritish consul Harry Parkers rightly pointed out,

"... the Siamese alphabet is as evidently a modification, orperhaps a simplification, of the religious character ofKamboja. As distinct language the Siamese could not haveexisted for more than four or five centuries at the utmost ...and long continued to be governed by Kambojan officers.Thiscircumstance will account for the fact of the court languagebeing so largely imbued with Kambojan terms and theirsacred books, to this day, being wholly written in theKambojan character": (H Parker, " Geographical Notes onSiam..." (1855Journal KG.S.L), p 74

1.50. Additionally, unlike Cambodia, Nan Chau was a landlocked state; itis consequently hard to imagine that the Thai could havecoined/invented the term for "island" when they did not have anyislands to so name. They have no record to prove that "Koh" hadbeen written anywhere before they colonized our land in 13thcentury as they, contrary to the Khmers, did not have writtencharacters before then.

1.51. Another Thai distortion was by K. Weeraprajak, who stated thatterm "Phra", which appears in a 12th (1167 A.D) century Khmerinscription is a Thai word, and is thus the earliest evidence of theuse of Thai language: Weeraprajak, Inscriptions from SouthernThailand, (1986c).This is another Thai nonsense. The fact is "Phra"is a corrupt pronunciation of the Khmer word Vrah or Preah usedby Khmer long before Angkor: Inscriptions K 843, K 175; longbefore the Thai arrived at Khmer western land.

1.52. PreAngkor inscriptions have been found virtually all over what isnow called Thailand - Khon Kaen, Si Thep, Pimai, Khora, ThaPhraya, Surin, Ubon - : MVickery, Society, Economics, and Politicsin PreAngkor Cambodia, (1998) p 72J C. Jacques, "Le Pays Khmeravant Angkor" J.D.S Jan-Sept, (1986) p 85. The evidence suggeststhat the Khmer did not expand their land to west during Angkor asthe Thais have claimed. The Khmers had always been there.

1.53. In summary, Dr. Kraingsak is incorrect both in law and in fact. TheCambodia's 1972 boundary claim against Thailand is supported byboth law and fact. The 1907 Treaty had already delimited theterritorial sea as pointed by the US Defense Department above.

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1.54. For Cambodia to retreat from the 1972 line, which is beingconsidered by the Royal Government, will be both a historical andlegal mistake and a tragedy for Cambodia.

1.55. On the basis set out above, in my view, the legal advice by theforeign geographical and international law consultants to the RoyalGovernment's is incorrect.

2. BOUNDARYISSUES WITHVIETNAM.2.1 Despite the constant advice on the illegality of 1979-1985

treaties/agreements, their effect on Cambodian territory and theirincompatibility with the Paris Accords 1991, the CPP continues tomislead the Khmer nation. The CPP knows very well that when itwas engaging in the border negotiations with Vietnam, its technicalknowledge and capacity was extremely limited, as admitted in theCouncil ofMinister's 10 Years Report, November 1989,pll-12.

2.2 In regard to the maritime boundary, without the 1982 HistoricWaters Agreement, and based on the doctrine of utis possidetis andthe Vietnam's 1967 declaration, Cambodia would be able to claimthe Brevie Line as the maritime boundary. Scholars are inagreement that:

"Cambodia can strongly argue that the Brevie line has beenestablished over a considerable period of time since itsformation in 1939 and that during that time it has beenrespected by both sides as the proper limits of theirjurisdiction. Furthermore, Cambodia can point to pastVietnamese actions, crucially the statements made by theCommunist National Liberation Front and North Vietnamesegovernment in 1967, which can be viewed as proof ofVietnam's acceptance of the Brevie Line as the maritimeboundary between the two state states and not merely as theline distinguishing sovereignty over islands": V.Prescott & C.Schofield, "Undelimited Maritime Boundaries of the AsianRim in the Pacific Ocean," Maritime Briefing, Vol. (2001)3(1),p 18.

2.4. The Vietnamese (NLF) 1967 statement, that it "(2) recognizes, andundertakes to respect, the existing frontiers between SouthVietnam and Cambodia", constituted a treaty: Norway vs. Denmark(P.C.I.J. Rep. Series AlB No.52 (1933). IfCambodia is not to declarenull and void the 1982 Agreement, Cambodia cannot successfullydefend the claim of the Brevie Line as boundary because, asSchofieldand Prescott state, the 1967Vietnamese statements

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Lekhet Charnhor PreahKakruna .June 2004."have in any case been superseded by the 1982 HistoricWaters Agreement which specifically provides fordelimitation in the future, thus making it clear that nomaritime boundary existed at the time of the conclusion ofthe agreement": Id, p18.

2.5. It is thus true that the 1982Agreement is detrimental to Cambodia.The existence of the 1982Agreement renders Cambodia defenselessas it renders the Brevie Line useless. From here, Vietnam will beable to demand the use of the equidistance principle in delimitingthe boundary. This means Cambodia will lose about half morewaters between KohTral and Cambodia's coast toVietnam.

2.6. The Uti Possidetis principle is not a jus cogens rule (a "jus cogens"rule is a rule of customary international law from which no statemay derogate and which may not be changed by treaty).Accordingly, a subsequent treaty or agreement such as the 1982Agreement can and will supersede the uti possidetis boundary, the1939 Brevie Line. This is why the 1982Agreement is a real dangerto Cambodia. This is why it needs to be declared void ab initio (voidfrom the beginning).

2.7. In relation to the CambodialCPP-Vietnam 1979-1985 Treaties andAgreements, although these treaties/agreements are not entitled (orreferred to as) "military alliance" or "cooperation", the substance ofthese treaties is such that they effectively amount to militaryalliance.

2.9. In addition to the fact that the 1979-1989 treaties and agreementswere made under the use or threat of the use of force, in violation ofinternational law, provisions of these treaties/agreements arespecifically incompatible with Article l(d) of the Paris Accordsbecause the clear purpose and spirit of these treaties andagreements was to create andlor to strengthen military solidarity(yuddha samakki), military alliance and "special friendship"between Cambodia and Vietnam, which is in clear breach ofCambodia's neutrality and sovereignty: Steven R. Ratner, "TheCambodia Settlement Agreements," Am. Journal Int'nl Law.(1993)87(1).

2.10. Article l(d) of the Paris Accords stipulates, among other things,that Cambodia solemnly undertakes

"to terminate treaties and agreements that are incompatiblewith its ...neutrality ..."

2.11. The specific articles which are not compatible with Article l(d) ofthe Paris Accords 1991are:

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Lckhet Chamhor PreahKakruria .Iune 2004.

2.11.1 the Agreement on Waiver of Entry and Depart Visa(3011111979)

paragraph 3 of its Preamble.2.11.2. the Treaty of Peace Friendship and Cooperation BetweenVietnam and

Cambodia (18/02/1979):para 2, 3, 4 & 6 of its PreamblePara 1 & 2 of Article 1Para 1 ofArticle 2Para 3 & 4 ofArticle 5.

This is the principal Treaty from which the othertreaties or agreements (set out below) derive theirauthority. These treaties expressly state that theirpurpose is to enforce the Treaty of Peace andFriendship Between Vietnam and Cambodia. Theexpress terms "military alliance" or "fightingsolidarity" are found in the followingagreements:(a) The Agreement Between the Department of

National Defense of Vietnam and theDepartment of National Defense of PRK (1981),Para 2 of the Preamble.

(b) The Agreement on the Allocation of Forces andFighting Cooperation Between the Units of theVietnamese People's Army and the Units of TheKampuchean Revolutionary Army (1981), Para 2ofthe Preamble.

(c) The Agreement Between the Department ofNational Defense of Vietnam and theDepartment of National Defense of PRK on theAssignment of the Vietnamese Military Expertsfor [Military] Operations in PRK (1981), Para 2ofthe Preamble.

2.11.3. The Agreement on Historical Waters Between Cambodia andVietnam (20/08/1982):

Para 1 of its Preamble

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Preah Kakruria .June 2004.2.11.4.the Treaty of Principles for Border Resolutions Between

Cambodia and Vietnam (20108/1983):Para 1& 2 of its preamblePara 1 ofArticle 2

2.11.5.The Agreement on Border Statutes Between Cambodia andVietnam (20108/1983):

Para 1 ofArticle 7 (?)Para 1 ofArticle 16Para 1ofArticle 17

2.11.6.The Treaty on Border Demarcation Between Cambodia andVietnam (27/12/1985):

Para 2 of its Preamble.2.11.7. In addition, the loss of land to Vietnam was mentioned in a

number of internal documents of PRK inlcuding The Minuteof the Meeting of the Council of State dated 31 January1986, p 8; and The Minute of Report by Comrade SaoSamuth, Chairman of the Sub-Committee of Svay RiengProvince to ComradeMzah Leah, Deputy Minister in Chargeof the Cabinet of the Council of Ministers dated 13 August1986.

2.12. According to the Royal Government's statements, at least four outof six land boundary "disputed" spots have been resolved on thebasis of "yokar jeak sdaeng" or eiiectivite.

2.13. If my understanding of the government's statements is correct,then, in my view, this is another mistake. According tointernational law precedents, the principle of eiiectivite cannot beused when there has been a recognized boundary, as the WorldCourt stated in the Frontier Dispute Case:

"where the act does not correspond to the law [the 1967declaration]' where the territory which is the subject of thedispute is effectively administered by a State [Vietnam] otherthan the one possessing the legal title, preference should begiven to the holder of title [Cambodia]":Burkina Faso v.Mali(1986)I.C.J. Rep Para 63.

2.14. The boundary line was clearly drawn under Your Majesty'scommand in 1964 and submitted to Vietnam for its respect andrecognition. By its 1967 declaration, Vietnam had recognized this

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Lekhet Chamhor PreahKakruna .Iune 2004.border. Without above treaties/agreements, Cambodia caneffectively hold Vietnam to it.

2.15. That being said, the Press release of the Cabinet Meeting 22/12/00posted in the Council of Ministers' websitehttp://www.camnet.com.khlocm/pressrelease31.htm. is suspect.

2.16. I am not sure whether this (kind of statement is an act of ignoranceor design on part of the CPP. Whatever the case, this statementmight have already done Cambodia an unreparable damage becauseCambodia appeared to have agreed to what it should not have, itappeared to have legitimized the 1985 demarcation Treaty which itshould not have.

2.17. More importantly, this statement (and these kinds of statements) isan effective way to bypass Your Majesty's approval or signature offuture boundary treaty because this kind statement could in certaincircumstances constitute a treaty. In other words, they do not needYourMajesty to sign or ratify a boundary treaty.

Please Your Majesty and Her Majesty accept my most respectful andaffectionate sentiments.

TouchBora EsqCC:Cabinet of Samdech Prime Minister Hun SenH.E Var Kim Hong, Chairman of the Mixed Committee on Border AffairsofState.President of FUNCINPEC PartyPresident of Sam Rainsy Party.President of the National AssemblyPresident of Senate.

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http://www.camnet.com.khlocm/pressrelease31.htm.http://www.camnet.com.khlocm/pressrelease31.htm.


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Asian Rim

Figure 3: The Gulf of Thailand

Mal ay s ia ' V i e tn a " ,A g re e d C o mm o n A re a

memo from bora touch to hm sihanouk on maritime borders (2004)

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