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The Cambodia Settlement Agreements

Published online by Cambridge University Press:  27 February 2017

Steven R. Ratner
Steven R. Ratner*
Affiliation:
Office of the Legal Adviser, U.S. Department of State
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Extract

On October 23, 1991, representatives of nineteen states participating in the Paris Conference on Cambodia signed a set of accords aimed at ending the twenty-year-old conflict in that country. The solemn ceremony at the Kleber Center in Paris marked the conclusion of over three years of intensive negotiations 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 beginning of an unprecedented role for the United Nations in the resolution of such conflicts.

Type
Research Article
Information
American Journal of International Law , Volume 87 , Issue 1 , January 1993 , pp. 1 - 41
Copyright
Copyright © American Society of International Law 1993

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References

1 For the texts, see Letter dated 30 October 1991 from the Permanent Representatives of France and Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A/46/608-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 genetically 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.

2 The literature on Cambodian history has grown significantly in recent years. For the most authoritative account to date in English, see David P. Chandler, A History of Cambodia (2d ed. 1992). Other useful works include Ben Kiernan, How Pol Pot Came to Power (1985); Federal Research Division, Library of Congress, Cambodia: A Country Study (Russell R. Ross ed., 1990) [herein after Cambodia: A Country Study]; and sources cited infra note 7.

3 Agreement on the Cessation of Hostilities in Cambodia, July 20, 1954, 935 UNTS 185. The main provisions called for a cease-fire; withdrawal of French and other foreign forces; demobilization of resistance forces; a ban on the entry of foreign troops, bases or military assistance; release of prison ers of war and civilian detainees; and creation of an international commission to supervise implementation of the accord.

4 Declaration by the Royal Government of Cambodia, July 20, 1954, 935 UNTS 99, 99–101. Cambodia 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 of the French Republic, July 21, 1954, 935 UNTS 101, 101–03. France stated its readiness to “withdraw its troops from the territory of Cambodia, Laos and Viet-Nam, at the request of the Governments concerned” and that it would “proceed from the principle of respect for the independence and sovereignty, the unity and territorial integrity of Cambodia, Laos and Viet-Nam.”

6 Geneva Conference on the Problem of 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 of the three Indochinese states and to refrain from interference in their internal affairs.

7 Numerous works are devoted to the Khmer Rouge years. The most complete studies in English are Cambodia 1975–1978: Rendezvous with Death (Karl D. Jackson ed., 1989); Nayan Chanda, Brother Enemy: The War after the War (1986); Elizabeth Becker, When the War Was Over: The Voices of Cambodia’s Revolution and Its People (1986); Michael Vickery, Cambodia: 1975–1982 (1984); and François Ponchaud, Cambodia: Year Zero (Nancy Amphoux trans., 1977).

8 The figure usually cited for the total number of deaths due to Khmer Rouge policies is over one million, out of a population in April 1975 of 7.3 million. See, e.g., Karl D. Jackson, The Khmer Rouge in Context, in Cambodia 1975–1978, supra note 7, at 3. The atrocities of the Khmer Rouge regime are recounted in detail in Kenneth M. Quinn, The Pattern and Scope of Violence, in id. at 179; and Becker, supra note 7, at 217–98.

9 GA Res. 34/22, UN GAOR, 34th Sess., Supp. No. 46, at 16, UN Doc. A/34/46 (1979).

10 See UN GAOR, 34th Sess., lst–32d plen. mtgs., UN Docs. A/34/PV.1–32, at 56–57 (1979) (accepting credentials of Democratic Kampuchean delegation by 71-35-34 vote); Chanda, supra note 7, at 376–78.

11 The UN Human Rights Commission’s Sub-Commission on Prevention of Discrimination and Protection of Minorities considered Cambodia’s human rights record in 1978. After various states, led by Great Britain, brought the matter to the attention of the Sub-Commission, the Commission passed information to the Government of Democratic Kampuchea and requested its views. The Cambodian authorities, in chilling invective, rejected the request. See Question of the Violations of Human Rights and Fundamental Freedoms in Any Part of the World, with Particular Reference to Colonial and Other Dependent Countries and Territories, Note by the Secretary-General, UN Doc. E/CN.4/1295–E/CN.4/Sub.2/418 (1978) (containing note of April 22, 1978, from Ministry of Foreign Affairs of Democratic Kampuchea). The Chairman of the Sub-Commission then prepared an analysis of the information. Analysis prepared on behalf of the Sub-Commission by its Chairman of materials submitted to it and the Commission on Human Rights under decision 9 (XXXIV) of the Commission on Human Rights, UN Doc. E/CN.4/1335 (1979). At its 1979 session, however, the Commission postponed examination of the report in light of the ouster of the Khmer Rouge government and thereafter considered only the Vietnamese occupation.

12 GA Res. 35/6, UN GAOR, 35th Sess., Supp. No. 48, at 13, 14, UN Doc. A/35/48 (1980).

13 Declaration on Kampuchea, in Report of the International Conference on Kampuchea, New York (13–17 July 1981), Ann. I, at 7, UN Doc. A/CONF.109/5, UN Sales No. E.81.I.20 (1981). The 15-point declaration mentions human rights only once, at the end of a paragraph concerning 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 of the Government of Democratic Kampuchea, which might have been expected in light of its continued seating at the United Nations. See Kishore Mahbubani, The Kampuchean Problem: A Southeast Asian Perception, 62 Foreign Aff. 407, 418 (1983/84).

14 Res. 1(1), in Report of the International Conference on Kampuchea, supra note 13, Ann. II, at 10.

15 See, e.g., GA Res. 43/19, UN GAOR, 43d Sess., Supp. No. 49, at 24, UN Doc. A/43/49 (1988). The other elements of the resolution, later affirmed in the mandate of the Paris Conference on Cambodia, see infra text at note 21, were (1) the creation of an interim administering authority; (2) national reconciliation under the leadership of Prince Sihanouk; (3) “the non-return to the universally condemned policies and practices of a recent past”; (4) the restoration of Cambodia’s independence, sovereignty, territorial integrity, neutrality and nonaligned status; (5) the right of Cambodians to determine their own destiny free of 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 of numerous states that human rights were a fundamental aspect of any settlement and that the Khmer Rouge should not regain power. The Khmer Rouge is deliberately not mentioned to gain the support of Democratic Kampuchea’s allies, especially China (which could interpret the wording to apply to PRK human rights abuses), and to avoid discussion of the legal significance of the atrocities. See also text at and notes 154–58 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, Neutral, 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 of Democratic Kampuchea [hereinafter Coalition Government], nominally led by Prince Sihanouk, members of which attended UN activities on behalf of Democratic Kampuchea until 1990. See Cambodia: A Country Study, supra note 2, at 196–203; Chanda, supra note 7, at 389–92.

17 ASEAN, formed pursuant to the Bangkok Declaration of 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 of Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A/43/493-S/20071, 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. of the Permanent Mission of Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A/44/138-S/20477 & Corr.l, Annex (1989) (consensus statement issued by JIM Chairman Alatas) [hereinafter JIM II Statement].

20 For the prior roles of India and Canada in Indochinese peace accords, see infra note 105.

21 Organization of Work, Text Adopted by the Conference at its 4th Plenary Meeting, on 1 August 1989, Paris Conference on Cambodia Document [hereinafter PCC Doc] CPC/89/4 [hereinafter PCC Mandate].

22 Id. at 3. The concept of a quadripartite interim authority was a compromise that could include an interim coalition government (as sought by the Coalition Government) or an advisory council subordinate to the existing regime (as sought by the PRK).

23 See Letter Dated 24 August 1989 from the Co-Chairmen of the First Committee to the Co-Chairmen of the Co-ordination Committee, PCC Doc. CPC/89/CC/l/Rev.l [hereinafter Comm. I Rep.]; Letter Dated 25 August 1989 from the Co-Chairmen of the Second Committee to the Co-Chairmen of the Co-ordination Committee, PCC Doc. CPC/89/CC/2/Rev. 1 [hereinafter Comm. II Rep.]; Letter Dated 25 August 1989 from the Rapporteur of the Third Committee to the Co-Chairmen of the Co-ordination Committee, PCC Doc. CPC/89/CC/3 [hereinafter Comm. III 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 III’s report contained draft statements on reconstruction and refugees. Committee III Report’s section on reconstruction was the only part of the three reports adopted by consensus in its entirety. See text at and notes 224–28 infra.

24 The issues of genocide and the settlers dominated much of the 1989 session of the conference, especially in Committee II. The PRK and its allies emphasized genocide to make clear that the nonreturn to power of 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 of showing its concerns about Vietnamese hegemony over Cambodia. See Issues Affecting the Question of United States Relations with Vietnam: Hearing Before the Subcomms. on Asian and Pacific Affairs and on International Economic Policy and Trade of the House Comm. on Foreign Affairs, 101st Cong., 1st Sess. 120 (1990) (testimony of Deputy Assistant Secretary of State David Lambertson) [hereinafter Vietnam Hearing].

25 See N.Y. Times, Aug. 31, 1989, at A12.

26 See N.Y. Times, Dec. 17, 1989, at A15; see also Stephen J. Solarz, Cambodia and the International Community, Foreign Aff., Spring 1990, at 99, 107–11.

27 See Summary of Conclusions of the Meeting of the Five Permanent Members of the Security Council on the Cambodian Problem, Paris, 15–16 January 1990, reprinted in N.Y. TIMES, Jan. 17, 1990, at A6 [hereinafter P–5 Jan. 16 Statement]; Conclusion of Consultations of the Five Permanent Members of the Security Council on Cambodia, New York City (Feb. 13, 1990) [hereinafter P–5 Feb. 13 Statement]; Summary of Discussions, Paris (Mar. 13, 1990) [hereinafter P–5 Mar. 13 Statement]; Summary of Conclusions, New York (May 26, 1990); Summary of Conclusions, Paris (July 17, 1990) (all on file with the author).

28 Statement of the Five Permanent Members of the Security Council of the United Nations on Cambodia, in Letter Dated 30 August 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, UN Doc. A/45/472-S/21689, Annex, Appendix (1990) [hereinafter Framework Document].

29 N.Y. Times, Sept. 11, 1990, at A3.

30 SC Res. 668, UN SCOR, 45th Sess., Res. & Dec. at 28, UN Doc. S/INF/46 (1990).

31 See Letter dated 8 January 1991 from the Permanent Representatives of France and Indonesia to the United Nations addressed to the Secretary-General, UN Doc. A/46/61-S/22059, Ann. II (1991) [hereinafter P–5 Draft].

32 See, e.g., Communiqué issued on 30 August 1991 by the Co-Chairmen of the Paris Conference on Cambodia and the five permanent members of the Security Council, in Letter dated 3 September 1991 from the Representatives of China, France, Indonesia, 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, UN Doc. A/46/418–S/23011 (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 of the Non-Aligned Movement in September 1989 and in that capacity took the seat at the October 1991 meeting of the conference formerly occupied by Zimbabwe.

38 Vienna Convention on the Law of 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 appropriate steps to allow the Security Council to consider the settlement); para. 13 (asking the International Committee of the Red Cross to facilitate the release of prisoners of war and civilian internees); and para. 15 (urging the international community to contribute to the reconstruction of Cambodia).

40 As of October 1992, Portugal had also become party to the Agreements. Telephone interview with Permanent Mission of 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 of State does not include it in its most recent list of international agreements to which the United States is a party. See U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 1992, at 296 (1992). Final acts of international conferences have been given a variety of legal contents. See, e.g., Geneva Conference on the Problem of Restoring Peace in Indo-China, supra note 6 (including legal obligations and work of conference); Third United Nations Conference on the Law of the Sea, Final Act, Dec. 10, 1982, reprinted in United Nations, The Law of the Sea 158, UN Sales No. E.83.V.5 (1983) (describing work of conference and appending resolutions); Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975, 73 Dep’t St. Bull. 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).

43 See, e.g., Austl. Dep’t of Foreign Affairs and Trade, Cambodia: an Australian Peace Proposal 135–43 (1990) (document prepared for the Jakarta Informal Meeting of Feb. 26–28, 1990).

44 Article 78 states: “The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.” See also UN Charter Art. 77 (authorizing trusteeships for former League of Nations mandates, territories separated from enemies as a result of World War II, and territories whose administering power voluntarily places them under trusteeship); Leland M. Goodrich, Edvard Hambro & Anne P. Simons, The Charter of the United Nations: Commentary and Documents 487 (3d rev. ed. 1969).

45 During the 1980s, approximately 30 countries, including the Soviet bloc states and approximately 20 other Third World states, recognized and maintained diplomatic relations with the PRK. Almost 80 countries recognized Democratic Kampuchea as the government of Cambodia, although it maintained active diplomatic relations with only about 10. See Cambodia: A Country Study, supra note 2, at 222, 224. Other countries, including the United States, did not regard the PRK, Democratic Kampuchea or the Coalition Government as the government of Cambodia.

46 P–5 Jan. 16 Statement, supra note 27, at 2 (“repository of Cambodian sovereignty”); P–5 Mar. 13 Statement, supra note 27, at 3 (“unique legitimate body and source of 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 of Democratic Kampuchea, see supra note 16, began referring to itself in 1990 as the National Government of Cambodia.

50 See, e.g., Hun Sen on SNC Agreement, Beijing Trip, Foreign Broadcast Information Service [FBIS], E. Asia Daily Rep., July 10, 1991, at 50–51 (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.

52 SC Res. 668, supra note 30. For background regarding the seating of Cambodia at the United Nations after the invasion by Vietnam, see supra note 16. The delegation of the National Government of 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.

53 See, e.g., Nkambo Mugerwa, Subjects of International Law, in Manual of Public International Law 247, 270–72 (Max Sørensen ed., 1968); Hersch Lauterpacht, Recognition in International Law 98–102 (1947).

54 The Security Council’s acceptance of the SNC’s assumption of 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 of delegates of entities that claimed to be, and were regarded by certain other states as, the government of the state. See Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 152–66 (1963) (discussing early disputes over representation). Second, the leading role of the Security Council in this process is unusual. See id. The Security Council did not state the legal basis of Resolution 668 in its text. The operative phrase concerning the SNC’s representation of Cambodia begins with the word “notes” and is not a decision of the Council with which member states must comply under Article 25 of the Charter.

55 Tinoco Concessions (UK v. Costa Rica), 1 R.I.A.A. 369, 376–84 (1923) (Taft, arb.); see also Ian Brownlie, Principles of Public International Law 92–93 (3d ed. 1979) (declaratory view represents 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 of a United Nations administration”); P–5 Mar. 13 Statement, supra note 27, at 3; Framework Document, supra note 28, paras. 8–12.

57 Comprehensive Settlement Agreement, supra note 34, Art. 2.

58 Id., Art. 6.

59 The SNC’s grant of authority to UNTAC in Article 6 of the Comprehensive Settlement Agreement should eliminate any questions about the consistency of UNTAC’s mission with the ban under Charter Article 2(7) on UN interference in matters within the domestic affairs of 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 124–25 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 of the Informal Meeting of the Supreme National Council of 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).

65 See United Nations, The Blue Helmets: A Review of United Nations Peacekeeping 419–49, UN Sales No. E.90.I.18 (1990) [hereinafter The Blue Helmets].

66 Treaty of Peace with Italy, Feb. 10, 1947, Art. 21 and Ann. VI, 61 Stat. 1245, 1380, 1429, 49 UNTS 3, 137, 186.

67 The status of Trieste was eventually resolved in the Memorandum of Understanding Between the Governments of Italy, the United Kingdom, the United States, and Yugoslavia Regarding the Free Territory of Trieste, Oct. 5, 1954, 5 UST 2386, 235 UNTS 99.

68 GA Res. 181, UN Doc. A/519, 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. 335–41, UN Sales No. 1951.I.24.

70 GA Res. 2248, UN GAOR, 5th Spec. Sess., Supp. No. 1, at 1, UN Doc. A/6657 (1967).

71 The civilian component of the United Nations Transitional Assistance Group, created under SC Res. 435, UN SCOR, 33d Sess., Res. & Dec. at 13, UN Doc. S/INF/34 (1978), engaged in oversight and supervision of the transition to independence, with special attention given to monitoring the South African police forces and election administrators, but not direct administration. See Report of the Secretary-General Submitted pursuant to Paragraph 2 of Security Council Resolution 431 (1978) concerning the Situation in Namibia, UN Doc. S/12827, at 7–8 (1978); The Blue Helmets, supra note 65, at 341–88.

72 Agreement Concerning West New Guinea (West Irian), Aug. 15, 1962, Indon.-Neth., 437 UNTS 274.

73 GA Res. 1752, UN GAOR, 17th Sess., Supp. No. 17, at 70, UN Doc. A/5217 (1962).

74 See Annual Report of the Secretary-General on the Work of the Organization, 16 June 1962–15 June 1963, UN GAOR, 18th Sess., Supp. No. 1, at 35, UN Doc. A/5501 (1963); see also Thomas M. Franck, Nation Against Nation: What Happened to the U.N. Dream and What the U.S. Can Do About It76–82 (1985). The League of Nations governed the Saar Basin in 1920–1935, and held a generally fair plebiscite in 1935 that resulted in the Saar’s reunification with Germany. See Frank P. Walters, A History of the League of Nations 82, 89–90, 239–43, 586–98 (1952). See also Arthur H. House, The U.N. in the Congo: The Political and Civilian Efforts (1978) (describing de facto UN control over parts of Congo administration).

75 See UN Doc. A/46/6l–S/22059, supra note 31, Ann. III (Explanatory Note prepared by UN officials describing three-tiered system and appended to P–5 Draft) [hereinafter Explanatory Note]. The Permanent Five, Australia and the United Nations considered many options on the nature of the UN role in civil administration. See Austl. Dep’t of Foreign Affairs and Trade, supra note 43, at 13–15, 21–34.

76 Comprehensive Settlement Agreement, supra note 34, Art. 6 and Ann. 1, sec. B, para. 1.

77 Id.

78 Id., 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 administrative 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 investigations regarding those entities over which he exercises the two greater levels of 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 of the settlement agreement.”

83 Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. B, para. 4 (“the authority of the … Special Representative will include the power to [install UN personnel and remove existing personnel]”) (emphasis added).

84 See supra text at notes 61–63.

85 The Agreement does not specify the priority of the SNC’s directives to the Special Representative over those of the Special Representative to the existing governmental entities. Nevertheless, a fundamental premise of the SNC’s delegation of 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 126–27, UNTAC’s authority to issue directives appears to be equivalent to the ability to impose new legislation and regulations.

87 See text at and notes 133–44 infra.

88 Comprehensive Settlement Agreement, supra note 34, Arts. 8–11, 21–22; Ann. 1, sec. C; Ann. 2. Annex 2 contains obligations of individual Cambodian parties, as well as of the Paris Conference 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 of agreements to be concluded to two.

89 See Comm. I Rep., supra note 23; Framework Document, supra note 28, paras. 13–19; Communiqué, 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 of Vietnam War-era Montagnard guerrillas in eastern Cambodia).

91 See, e.g., GA Res. 44/22, UN GAOR, 44th Sess., Supp. No. 49, at 29, 30, UN Doc. A/44/49 (1989) (noting “the announced withdrawal of foreign forces from Kampuchea, but emphasizing that it has not been verified under supervision and control of the United Nations and is not within the framework of 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 of the Korean People’s Army and the Commander of 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 Agreement, 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 of the UN Security Council, 71 AJIL 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 Country Study, supra note 2, at 271–76, 287; Chanda, supra note 7, at 348–49, 381–82.

96 See, e.g., International Security and Development Cooperation Act of 1985, Pub. L. No. 99–83, secs. 905–906, 99 Stat. 190, 268–69 (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 of Troops, FBIS, E. Asia Daily Rep., Aug. 12, 1991, at 36 (State of Cambodia radio).

102 Comprehensive Settlement Agreement, supra note 34, Arts. 21–22; Ann. 1, sec. C, para. 5; Ann. 2, Art. XI.

103 Id., Ann. 1, sec. C, para. 1(e); Ann. 2, Art. IX. Estimates of the number of unexploded hidden mines in Cambodia range from five hundred thousand to five million. N.Y. Times, 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 view of Vietnam and the State of Cambodia that, in light of the annual General Assembly resolutions on Cambodia, the United Nations would be biased during the implementation of the settlement.

105 See, e.g., Agreement on the Cessation of Hostilities in Viet-Nam, July 20, 1954, Art. 34, 935 UNTS 149, 159 (international control commission composed of members from India, Canada and Poland); Protocol to the Declaration on the Neutrality of Laos, July 23, 1962, Art. 1,14 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 of 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 of 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. 16–17, 24 UST at 12–15, 935 UNTS at 57–59 (four-party and two-party Joint Military 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.

112 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, 63–77 (1992) (emergence of free and fair elections as norm of international law).

113 Comprehensive Settlement Agreement, supra note 34, Ann. 3, para. 2.

114 See P–5 Draft, supra note 31, at 24; Hun Sen, Sihanouk to Gain from Electoral System, FBIS, E. Asia Daily Rep., Sept. 20, 1991, at 34 (Agence France Presse report).

115 N.Y. Times, Nov. 14, 1991, at A3 (interview with U.S. Mission chief Charles Twining).

116 Comprehensive Settlement Agreement, supra note 34, Ann. 3, paras. 3–4. See also text at and note 239 infra (UNTAC’s modification of these provisions for 1992 electoral law).

117 I am grateful to Dottie Avery of the State Department’s Bureau of Intelligence and Research for background on the settlers. See also Nayan Chanda, Wounds of History, Far E. Econ. Rev., July 30, 1992, at 14; Chanda, supra note 7, at 375–76.

118 Under the law in effect at the start of 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) of such a person. Kram No. 913–NS, Art. 22, Journal Officiel du Cambodge, Dec. 2, 1954.

119 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 49, 6 UST 3516, 3548, 75 UNTS 287, 318 (“The Occupying Power shall not deport or transfer parts of 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 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 283 (Jean S. Pictet ed., 1958). One underlying purpose of the Convention—to preserve the status quo in occupied lands until achievement of a political solution—suggests that it bars even the transfer of persons with strong ties to Cambodia. See id. at 272–73. However, regardless of the means by which settlers entered Cambodia, the presence of some, especially those who were once citizens of Cambodia, may be legal under international human rights law. See, e.g., Universal Declaration of 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 of the right to enter his own country.”).

120 See supra note 24.

121 Comprehensive Settlement Agreement, supra note 34, Ann. 3, paras. 5, 7.

122 See, e.g., Wash. Post, NOV. 18, 1991, at A13 (Khmer Rouge leader Son Sen, on return to Phnom Penh, stated: “The past is history. We’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 of free and fair elections …”).

125 In addition to the language in Article 13 quoted above, the portion of the mandate of UNTAC describing its electoral functions refers only to the Elections Annex, and not to that part of the mandate describing UNTAC’s relationship with the SNC. Comprehensive Settlement Agreement, supra note 34, Ann. 1, sec. D, para. 1 (“UNTAC will organize and conduct the election … in accordance 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 of 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 of UN practice and policy in the supervision of elections, see Enhancing the effectiveness of the principle of periodic and genuine elections, Reports of the Secretary-General, UN Docs. A/46/609 (1991) and A/47/668 (1992).

129 SC Res. 435, supra note 71. See also Letter Dated 10 April 1978 from the representatives of Canada, the Federal Republic of Germany, France, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the President of the Security Council, UN SCOR, 33d Sess., Supp. for Apr.–June 1978, at 17–19, UN Doc. S/12636 (1978) (Proposal for a settlement of the Namibian situation); Letter Dated 12 July 1982 from the representatives of Canada, the Federal Republic of Germany, France, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the Secretary-General, id., 37th Sess., Supp. for July–Sept. 1982, at 12, UN Doc. S/15287, Annex (1982) (Principles concerning the Constituent Assembly and the Constitution 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 of the Security Council, UN Doc. A/44/375 (1989) (mandate of observer mission); The Situation in Central America: Threats to International Peace and Security and Peace Initiatives, Note by the Secretary-General, UN Doc. A/44/927 (1990) (final report of Special Representative). The Nicaraguan mission was the first case of UN supervision and verification of elections in a member state. See also Franck, supra note 112, at 71–77 (evaluating UN election monitoring in member states).

131 See GA Res. 45/2, UN GAOR, 45th Sess., Supp. No. 49A, at 12, UN Doc. A/45/49 (1990) (creating observer mission); Special Economic and Disaster Relief Assistance, Electoral Assistance to Haiti: Note by the Secretary-General, UN Doc. A/45/870/Add.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/22464 (1991) (implementation plan); The Situation Concerning Western Sahara, Report of the Secretary-General, UN Doc. S/21360 (1990) (peace plan giving Secretary-General’s representative “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. Asia Daily 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 of [UNTAC] … , which will act with full respect for the national sovereignty of Cambodia”); id., Art. 12 (elections to be held in neutral political environment “with full respect for the sovereignty of Cambodia”); Final Act, supra note 33, para. 10 (same).

135 See Explanatory Note, supra note 75, at 35 (“The role of the United Nations as envisioned in the draft agreement is based upon full respect for the sovereignty of the Cambodian nation …”).

136 1 D aniel Patrick O’Connell, International 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”).

137 See Hans Kelsen, Principles of International Law 249 (Robert W. Tucker ed., 2d ed. 1966) (means at best that “a state in the sense of international law is legally subjected only to international law … and not to the national law of another state”); Brownlie, supra note 55, at 80–81, 287–90 (noting various usages, but appearing to endorse equation with independence). For less equivocal views, see 1 Lassa Oppenheim, International Law 119 (Hersch Lauterpacht ed., 8th ed. 1955); Clive Parry, The Function of Law in the International Community, in Manual of Public International Law, supra note 53, at 13; Mugerwa, supra note 53, at 253; and 1 O’Connell, supra note 136, at 284 (equating the two to mean “that the State has plenary but not absolute competence in international law, unfettered by constitutional constraints of entities like itself”). But see J. L. Brierly, The Law of Nations 47 (6th ed. 1963) (“merely a term which designates an aggregate of 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 Recueil Des Cours 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 Emory Int’l L. Rev. 321, 416–41 (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 of 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 of a political, economic, social and cultural system, and the formulation of foreign policy”).

140 See supra text at notes 67–74.

141 1 Oppenheim, supra note 137, at 188–96, 212–42; Kelsen, supra note 137, at 253–59; see also International Status of South-West Africa, 1950 ICJ Rep. 128, 150 (Advisory Opinion of July 11) (separate opinion of Judge McNair) (sovereignty has no application to mandate and trusteeship system).

142 The consent of Cambodia to the creation of 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 of 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 of pacta sunt servanda), the substance of that obligation could entail loss of sovereignty. See, e.g., Agreement between the British Government and the Sultan of Brunei for the Establishment of a British Protectorate, Sept. 17, 1888, 79 Brit. & Foreign St. Papers 240 (Edward Hertslet ed., 1895) (surrendering independence to the United Kingdom).

143 The structure of the accords deliberately emphasizes the authority of UNTAC, based on the assumed impotence of the SNC. Although the SNC retains, in the first instance, the authority to govern Cambodia, the Agreement, supra note 34, contains a blanket delegation of authority to UNTAC (Art. 6); states UNTAC exercises all powers needed for implementation of 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 of sovereignty that UNTAC’s powers can be reconciled with those views.

144 From the perspective of popular sovereignty, the consent of the SNC to UN involvement and the multinational nature of that effort make Cambodia an easier case to justify than unilateral intervention. See Reisman, supra note 138, at 875.

145 See, e.g., Amnesty International, Amnesty International Report 1987, at 239–42 (1987) (reports of imprisonment without trial, torture, and unfair trials).

146 See Comm. II Rep., supra note 23; Framework Document, supra note 28, paras. 24–29.

147 Comprehensive Settlement Agreement, supra note 34, Art. 15(2)(a). See also supra note 15 (origin of 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 9–13, UN Doc. E/1991/22-E/CN.4/1991/91 (special rapporteurs, experts, and special representatives examining particular human rights issues or countries).

151 ICCPR, supra note 119.

152 Dec. 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 of Legal Affairs, Treaty Section (July 2, 1992).

153 Opened for signature Mar. 7, 1966, 660 UNTS 195, reprinted in 5 ILM 352 (1966). See also Second Progress Report of the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S/24578, 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 280–82. The Convention defines genocide as any of 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 of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of 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 of 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 Dep’t position).

157 See Hannum, supra note 156, at 94–101; Kathryn Railsback, A Genocide Convention Action Against the Khmer Rouge: Preventing a Resurgence of the Killing Fields, 5 Conn. J. Int’l L. 457 (1990); Jim Leach, Don’t Help Pol Pot. Try Him, N.Y. Times, Sept. 27, 1989, at A29; Vietnam Hearing, supra note 24, at 123–36 (State Dep’t assessment of proposals).

158 The distinction between “adhering to” and “complying with” the relevant human rights instruments appears more cosmetic than legally substantive in light of the dictates of pacta sunt servanda. Prince Sihanouk has announced his desire to have such trials. N.Y. Times, NOV. 17, 1991, at A18. See also Wash. Post, Oct. 24, 1991, at Al, A42 (U.S. Secretary of State supports prosecution by new Cambodian government).

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 of the Secretary-General, UN Doc. S/22494 (1991) (mandate of mission’s human rights component).

160 Namibia Principles, supra note 129. See also Report of the Constitutional Conference Held at Lancaster House, London, September-December 1979, reprinted in 19 ILM 387, 388 (1980) (proposal for Zimbabwe’s independence constitution). See also Report of the Secretary-General on the International Conference on the Former Yugoslavia, UN Doc. S/24795, at 45 (1992) (proposed constitutional structure for Bosnia-Hercegovina).

161 The list of rights is as follows:

right to life, personal property, security, freedom of movement, freedom of religion, assembly and association including political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation of property or deprivation of 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 of the law and entitle individuals to access to the courts to adjudicate their rights. Id. Although elaboration of the content of these rights is beyond the scope of this article, they generally restate those in the Universal Declaration of 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 Settlement Agreement, Art. 23.

163 See Nayan Chanda, Civil War in Cambodia?, Foreign Pol’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).

164 See Franck, supra note 112, at 90–91 (emerging norm regarding process for legitimation of governments).

165 See Protocol Relating to the Status of Refugees, Jan. 31, 1967, Art. 1(2), 19 UST 6223, 6225, 606 UNTS 267, 268 (definition of refugee based on Art. I(A) of the Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, 152).

166 See Valerie O. Sutter, The Indochinese Refugee Dilemma 75–81 (1990).

167 Comprehensive Settlement Agreement, supra note 34, Art. 20.

168 Comm. III 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 of 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 of Letters Constituting an Agreement Concerning the Status of United Nations Peace-Keeping Force in Cyprus, Mar. 31, 1964, UN-Cyprus, 492 UNTS 57; Derek W. Bow-ett, United Nations Forces: A Legal Study 432–55 (1964).

172 See Cambodia: A Country Study, supra note 2, at 206–07 (independence of liberation forces commander Sak Sutsakhan from Son Sann).

173 Cf. Vienna Convention on the Law of Treaties, supra note 38, Art. 27, 1155 UNTS at 339 (internal law not a justification for breach of international obligations).

174 See, e.g., Declaration on the Neutrality of Laos, July 23, 1962, Art. 4, 14 UST 1104, 1107,456 UNTS 301, 304; Act of the International Conference on Viet-Nam, Mar. 2, 1973, Art. 7, 24 UST 486, 489, 935 UNTS 405, 408.

175 GA Res. 35/6, supra note 12, para. 3. See also JIM II Statement, supra note 19, at 5.

176 See text at and notes 21–22 supra.

177 Framework Document, supra note 28, paras. 31–36.

178 See 1 Oppenheim, supra note 137, at 964 (treaties of guarantee are “conventions by which one of the parties engages to do what is in its power to secure a certain object to the other party”).

179 See id. at 965 & nn. 4–6 (citing treaties of guarantee). For an unusual contemporary case of a classic guarantee, see SC Res. 687, para. 4 (Apr. 3, 1991) (Security Council “[d]ecides to guarantee the inviolability” of the Iraq-Kuwait boundary and “take as appropriate all necessary measures to that end” in accordance with the Charter). See also Treaty of Peace with Italy, supra note 66, Art. 21, 61 Stat. at 1380, 49 UNTS at 137 (Trieste’s “integrity and independence shall be assured by the Security Council of 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 of 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 of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution,” and each “reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty”).

180 See Declaration on International Guarantees, Apr. 14, 1988, U.S.-USSR, 27 ILM 584 (1988) (“guarantors” of Afghanistan peace accords agree to refrain from interference and respect commitments between Pakistan and Afghanistan); State Treaty for the Re-establishment of 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 of these agreements used the word “guarantee” in its operative language. See also Memorandum of 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. 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 of the treaty).

181 See supra note 174; see also John J. Czyzak & Carl F. Salans, The International Conference on the Settlement of the Laotian Question and the Geneva Agreements of 1962, 57 AJIL 300 (1963).

182 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Principle 6, para. 2(b), GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, 124, UN Doc. A/8028 (1970) [hereinafter Friendly Relations Declaration]. See supra text at notes 133–44.

183 See SC Res. 687, supra note 179, para. 4 (guaranteeing “the inviolability of the [Iraq-Kuwait] international boundary”); Final Act of the Conference on Security and Co-operation in Europe, supra note 41, para. 1(a)(III), 14 ILM at 1294 (states “regard as inviolable all one another’s frontiers as well as the frontiers of all states in Europe”); Treaty of 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 of force to violate the existing international boundaries of another State …”).

184 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Arts. 22, 24, 27(2), 29, 30, 23 UST 3227, 3237–40, 500 UNTS 95, 106, 108, 110; see Biswanath Sen, A Diplomat’s Handbook of International Law and Practice 107–26 (3d ed. 1988).

185 See text at and note 209 infra; see also Cambodia: A Country Study, supra note 2, at 262–63.

186 Comm. II Rep., supra note 23, at 10 (proposing insertion of reference to border purportedly recognized internationally on March 17, 1970, the day before the overthrow of Sihanouk by General Lon Nol).

187 Declaration by the Government of the French Republic, supra note 5, 935 UNTS at 103; Geneva Conference on the Problem of Restoring Peace in Indo-China, Final Declaration, supra note 6, para. 12, 935 UNTS at 97–99.

188 Declaration on the Neutrality of Laos, supra note 174, Arts. 1, 2(a), 3, 4, 14 UST at 1106–07, 456 UNTS at 303–04.

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 of the International Conference on Viet-Nam, supra note 174, Arts. 2, 4, 5, 7(a), 24 UST at 487–89, 935 UNTS at 406–08. See also GA Res. 46/182, Annex, para. I.3 (Apr. 14, 1992) (noting on guiding principles for UN humanitarian assistance that “the sovereignty, territorial integrity, and national unity of States must be fully respected”); GA Res. 1474, para. 3, UN GAOR, 4th Emergency Spec. Sess., Supp. No. 1, at 1, UN Doc. A/4510 (1960) (calling upon Congolese to seek a solution “for the unity and integrity of the Congo”).

190 See 1 Oppenheim, supra note 137, at 243; see also Krzysztof J. Skubiszewski, Use of Force by States. Collective Security. Law of War and Neutrality, in Manual of Public International Law, supra note 53, at 843.

191 Declaration respecting the Affairs of the Swiss Confederation, Mar. 20, 1815, 64 Consol. TS 5.

192 Treaty for the Definitive Separation of Belgium from Holland, Nov. 15, 1831, Art. 7, 82 Consol. TS 255, 259.

193 Treaty relative to the Grand Duchy of Luxembourg, May 11, 1867, Art. II, 135 Consol. TS 1, 4.

194 Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, Oct. 20, 1921, 9 LNTS 213.

195 Declaration on the Neutrality of Laos, supra note 174, Art. 1, 14 UST at 1106, 456 UNTS at 303.

196 Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, Sept. 7, 1977, 33 UST 1, 1161 UNTS 177.

197 The Government of Austria requested and received recognition by other states of Austria’s perpetual neutrality as codified in its domestic law. See, e.g., Exchange of Notes between the Ambassador of Austria and the Secretary of State, reprinted in Council on Foreign Relations, Documents on American Foreign Relations 1955, at 162–63 (Paul E. Zinner ed., 1956). Although such unilateral 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 of permanent neutrality. See Memorandum Concerning the Results of the Conversations between the Government Delegation of the Republic of Austria and the Government Delegation of the Soviet Union, reprinted in 32 Dep’t St. Bull. 1011 (1955). The Austria State Treaty, supra note 180, does not contain a multilateral commitment 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 of Malta concerning the Neutrality of Malta, May 15, 1981, reprinted in 21 ILM 397 (1982). Malta’s neutrality has been recognized by Italy, Declaration by the Government of the Republic of Italy with Respect to the Neutrality of Malta, reprinted in UN Doc. A/36/348 (1981), and France, Note Verbale dated 1 March 1982 from the Permanent Mission of France to the United Nations addressed to the Secretary-General, UN SCOR, 37th Sess., Supp. for Jan.–Mar. 1982, at 34, UN Doc. A/37/105–S/14892 (1982). See also 1 Oppenheim, supra note 137, at 243–44 n.2 (cases of “self-neutralization”).

199 See, e.g., GA Res. 43/19, 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 Chanda, supra note 7, at 108–35, 380–81; see also Franck, supra note 74, at 159 (preference of Non-Aligned Movement to use neutralization as basis for solving conflicts).

201 Guarantees Agreement, supra note 35, Art. 1(2)(a)–(d), (g)–(h).

202 Id., Art. 1(2)(e)–(f).

203 Id., Arts. 2, 4. Cambodia’s obligation not to use its territory or other states’ territories for actions against third states, id., Art. 1(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). This last obligation is of special importance to Thailand, which saw Vietnamese soldiers, in pursuit of Cambodian resistance forces, cross into its territory and fight with Thai troops. See, e.g., Elizabeth Becker, Kampuchea in 1983: Further from Peace, 24 Asian Surv. 37 (1984).

204 See Richard L. Jackson, The Non-Aligned, the UN and the Superpowers 279 (1983).

205 See, e.g., GA Res. 43/19, 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 agreement).

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 of sabotage by the imperialist and international reactionary forces”); Art. 5, id. (attaching “great importance to the long-standing tradition of militant solidarity and fraternal friendship between 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 of Country’s Borders, Far E. Econ. Rev., Sept. 3, 1992, at 16, 17 (citing U.S. Dep’t of State review concluding that 1985 treaty awards nearly all of disputed territory to Vietnam). See also KR Demand Redrawing of Border with SRV, FBIS, E. Asia Daily Rep., Aug. 24, 1992, at 30 (citing statement of Khmer Rouge leader Khieu Samphan insisting that all PRK-Vietnam border treaties be declared null and void).

210 Vienna Convention on the Law of Treaties, supra note 38, Art. 52, 1155 UNTS at 344.

211 See text at and notes 90–91 supra.

212 Guarantees Agreement, supra note 35, Art. 2(2)(b).

213 See Friendly Relations Declaration, supra note 182, Principle 3, at 123; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res. 2131, UN GAOR, 20th Sess., Supp. No. 14, at 11, UN Doc. A/6014 (1965).

214 See supra note 213. See also Nicaragua, 1986 ICJ Rep. at 108, para. 205 (intervention wrongful “when it uses methods of coercion,” which “is particularly obvious in the case of an intervention which uses force”); Rosalyn Higgins, Intervention and International Law, in Intervention in World Politics 36–38 (Hedley Bull ed., 1984). The lawfulness of forcible intervention under exceptional circumstances, such as humanitarian intervention or assistance to those fighting repressive regimes, is beyond the scope of this article, but would require assessment if the human rights situation in Cambodia significantly deteriorated. For a recent review of the positions on this issue, see Law and Force in the New International Order 143–223 (Lori F. Damrosch & David J. Scheffer eds., 1991) and sources cited therein. See also Gary Klintworth, Vietnam’s Intervention in Cambodia in International Law 41–84 (1989) (justifying 1978 invasion as humanitarian intervention).

215 For a complete treatment of this subject, see Lori F. Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1 (1989).

216 See supra note 59.

217 See Nicaragua, 1986 ICJ Rep. at 126, para. 246 (“intervention … is already allowable at the request of the government of a State”). However, the legality of 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 “cooperating, tactically or strategically, with the Khmer Rouge in their military operations” and incorporating similar ban from the International Security and Development Cooperation Act of 1985, supra note 96, sec. 906).

218 See Damrosch, supra note 215, at 8–12 (noting lack of consensus among drafters of Friendly Relations Declaration). The ICJ’s rather broad brush strokes on the issue in the Nicaragua case, 1986 ICJ Rep. at 109, para. 209 (“no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”), even if correct, is not applicable to the unique context of Cambodia, where no faction can now be regarded legally as “an opposition.”

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 43–45 (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 of Treaties, supra note 38, Art. 31(1), 1155 UNTS at 340 (interpretation of treaties in light of their object and purpose).

221 See infra note 241.

222 Guarantees Agreement, supra note 35, Art. 5(4). Cf. Genocide Convention, supra note 154, Art. VIII: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of 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 Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, do not restrict the recourse of members to the competent organs of the United Nations for the resolution of 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 of All Forms of Racial Discrimination, supra note 153, Art. 16, 660 UNTS at 234.

224 See Comm. III 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.

229 See Report of the Secretary-General on Cambodia, UN Doc. S/23097 (1991); Comprehensive Settlement Agreement, supra note 34, Art. 9 and Ann. 2, Art. I, para. 1.

230 Report of the Secretary-General on Cambodia, UN Doc. S/23613 (1992).

231 UNTAC’s implementation is fully discussed in the progress reports prepared by the Secretary-General. See First Progress Report of the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S/23870 & Corrs.1 & 2 (1992); Special Report of the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S/24090 (1992); Second Special Report of the Secretary-General on the United Nations Transitional Authority in Cambodia, UN Doc. S/24286 (1992) [hereinafter Second Special Rep.]; Second Progress Rep., supra note 153; Report of the Secretary-General on the Implementation of Security Council Resolution 783 (1992), UN Doc. S/24800 (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 Daily Rep., Aug. 26, 1992 (Khmer Rouge views on Vietnamese forces and proposal for “consultative committees” to be placed within administrations of four factions). Earlier Khmer Rouge arguments that, under the Paris accords, the existing administrative structures of the State of Cambodia must be dismantled, see, e.g., Khieu Samphan Gives Address, FBIS, E. Asia Daily Rep., June 8, 1992, at 32–34, are completely without merit. See text at and notes 75–83 supra.

233 Wash. Post, Nov. 27, 1992, at A41.

234 Note by the President of the Security Council, UN Doc. S/24091 (1992).

235 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 UNTAC Chief Signs Cambodian Election Laws, FBIS, E. Asia 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 Daily Rep., June 23, 1992, at 6 (containing Tokyo Declaration on Rehabilitation and Reconstruction of Cambodia). With regard to assistance to the factions discussed in text at and notes 218–21 supra, paragraph 2(c) of the Tokyo Declaration, id., states that “[assistance … should be made available impartially with full regard for Cambodia’s sovereignty, and benefit all regions of Cambodia, and reach all levels of society and the most needy sectors of the population.” See also Second Progress Rep., supra note 153, at 12–13 (UNTAC policies on disbursement of assistance).

242 See, e.g., SC Res. 242, UN SCOR, 22d Sess., Res. & Dec. at 8, UN Doc. S/INF/22/Rev.2 (1967); SC Res. 338, UN SCOR, 28th Sess., Res. & Dec. at 10, UN Doc. S/INF/29 (1973) (principles for settlement of Arab-Israeli conflict).

243 See, e.g., Framework Document, supra note 28.

244 See SC Res. 687, supra note 179 (terms for conclusion of Persian Gulf conflict).

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

246 See generally An Agenda for Peace: Preventive diplomacy, peacemaking and peacekeeping: Report of the Secretary-General pursuant to the Statement adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc. A/47/277–S/24111 (1992), reprinted in 31 ILM 956 (1992).

247 George L. Sherry, The United Nations, International Conflict, and American Security, 101 Pol. Sci. Q. 753, 762 (1986).

248 See Gerald B. Helman & Steven R. Ratner, Rescuing Failed States, Foreign Pol’y, Winter 1992–93, at 3.