History was created by the European Parliament on September 13. For the time since the United Nations’ peacekeeping mission known as UNTAC (United Nations Transitional Authority in Cambodia), the Parliament passed a 13-point resolution aimed at according tougher actions against Cambodia and its rulers similar to those imposed by the US government.

The resolutions will help to reassure skeptics of the relevance of the 1991 Paris Peace Accords and in the process have established a precedent in accordance with the application of international law. The EU Parliament noted that Cambodia’s “decision to dissolve the CNRP [Cambodia National Rescue Party] was a significant step towards the creation of an authoritarian state; whereas the political structure of Cambodia can no longer be considered a democracy [emphasis added].”

Citing a number of examples of non-compliance by the Cambodian regime to other resolutions, particularly serious violations of human rights and freedom of speech, Resolution 10 calls on the European Commission “to compile a list of individuals responsible for the dissolution of the opposition and other serious human-rights violations in Cambodia with a view to imposing possible visa restrictions and asset freezes on them.”

In passing these resolutions, the Parliament stated, “Having regard to the 1991 Paris Peace Accords, in which a commitment to uphold human rights and fundamental freedoms in Cambodia, including on the part of international signatories, is enshrined in Article 15.”

Prima facie the 1991 Peace Accords still have relevance and are applicable under international law. The EU’s statement is also consistent with a declaration made by former UN special representative Surya Subedi, as he declared marking the 20th anniversary of the accords: “The agreements will remain relevant until their vision is a reality for all Cambodians.”

Article 15 of the accords is the most cited and relevant provision. It is a two-fold provision and acts as contractual jus cogens in international law – a guarantee and a shield that prevent the return of past policies and practices resulting in the “bloodshed” in Cambodia that led to the signing of the accords.

The same article was referred to on October 23 last year by Human Rights Watch in a joint statement with 55 other non-governmental organizations seeking reconvention of the accords’ participants in the event of a breach or violation of the accords. Among other breaches, the reversal of Cambodia’s liberal multiparty system to a one-party system, resulting in “dismantling of democracy,” was noted. As a matter of relevance to the application of international law, the joint statement quoted a speech by Cambodian Prime Minister Hun Sen commenting that the Paris agreements were dead like “ghosts.”

Some would argue that Cambodia’s international obligations ceased at the time the UN completed its peacekeeping mandate, rendering the 1991 agreements obsolete. Hun Sen reportedly said that when the accords were signed, the Soviet Union no longer existed. Thus the original composition of states bound by the agreements 27 years ago has no legitimacy and authority. This argument would fall into the concept of a fundamental change in the circumstances under Article 62 of the Vienna Convention on the Law of Treaties (VCLT).

On the other hand, opponents of this point of view including the European Parliament, Human Rights Watch, other governments and experts would contend that the doctrine of pacta sunt servanda as codified in Article 26 of the VCLT states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith,” so the accords are still applicable to Cambodia. Cambodia is still expected to comply with fundamental duties enshrined in Article 15 of the 1991 accords.

The argument that the doctrine of pacta sunt servanda outweighs all other considerations is further strengthened pursuant to Article 17 of the accords, whereby the UN Human Rights Commission would appoint a Special Rapporteur to monitor the situation of human rights at the end of the UN’s peacekeeping mission. Clearly the drafters of the accords must have envisaged the likelihood of non-performance of Article 15 to warrant a monitoring-mechanism provision to be included to avoid “bloodshed” – the cause for these agreements in the first place.

In conclusion, given the absence of a timeline relating to performance under the accords, from an international-law perspective, the human-rights component is still left open under Article 26 of the VCLT. Hence it made sense for the European Parliament to adopt the resolutions of September 13.

Kota Kinabalu, Malaysia - January 3, 2015: Young girl gives money to a beggar on the street Kota Kinabalu in Borneo, Malaysia
Cambodian-Australians demonstrate in Sydney on September 15, 2018. Photo: Sawathey Ek

Despite the dire situation in Cambodia, the Australian government is yet to take a similar position to that of the EU. Last Saturday, members of the Cambodian diaspora held a demonstration in Sydney demanding that Australia put before the UN Security Council the issues raised in the joint statement released last year by Human Rights Watch and other NGOs.

The protesters also demanded that Australia join with the European Parliament and the US government to impose sanctions on the Hun Sen regime and not to recognize the new government formed after the election last July.