Acts of retorsion in defence of Cambodian democracy?

Published: 28 February 2018 Author: Stefan Talmon

Cambodia has been ruled by Prime Minister Hun Sen and his ruling Cambodia People’s Party (CPP) since January 1985, making him the world’s longest-serving prime minister. At the last general elections in July 2013, which were marked by allegations of electoral fraud and irregularities, the CCP received 48.83% of the votes and won 68 seats while the opposition Cambodia National Rescue Party (CNRP) won all the remaining 55 seats in the 123-seat National Assembly with 44.46% of the votes. The election saw the CPP lose 22 seats to the CNRP.

In the run-up to the next general elections in July 2018, the government under Prime Minister Hun Sen intensified its repression of the political opposition and the media. On 3 September 2017, CNRP leader Kem Sokha was arrested for allegedly conspiring with a “foreign power [the United States of America] to overthrow the legitimate authority under the guise of democracy.” The next day, the spokesperson of the Federal Foreign Office in Berlin issued the following statement:

“The Government of the Federal Republic of Germany was very concerned to learn of the arrest of opposition leader Kem Sokha despite his parliamentary immunity in Cambodia.

The recent events in Cambodia, constraints on civil society organisations, steps taken against the media as well as this arrest signify a massive restriction of freedom of speech and thus the democratic process in the country.

Without a credible opposition, democratic control, free media and an active civil society, the upcoming election to the National Assembly in July 2018 loses credence.

The Federal Government is thus asking for an immediate release.”

Repeated calls for the release of Kem Sokha by Germany and other countries, however, went unheeded. Quite the contrary, on 16 November 2017 Cambodia’s highest court decided to dissolve the CNRP for its part in the alleged plot to overthrow the government. The Court also decided to ban 118 CNRP lawmakers and senior officials from engaging in political activities for five years and to remove more than 5,000 elected CNRP communal chiefs and district counsellors from their positions. Through these decisions, the Court essentially eliminated all serious political competition ahead of the general elections in July 2018.

In talks with the Cambodian Government in Phnom Penh and with the Cambodian Embassy in Berlin, the Federal Government repeatedly protested the dissolution of the CNRP and called for the annulment of the decisions of 16 November 2017. In order to back up its words with action, the Federal Government took a number of measures. The Federal Government stated:

“Bilaterally, the Federal Government has withdrawn special facilities and preferential treatment for the issuing of visas for private travel by members of the [Cambodian] government, including Prime Minister Hun Sen and his family, by high-ranking military officials and the president of the highest Cambodian court.

The Federal Government […] has repeatedly received representatives of the opposition party [CNRP] in the Federal Foreign Office.

[T]the Federal Government has suspended until further notice the signing with the Cambodian Government of a ‘Memorandum of Understanding’ on regular political consultations.

In addition, the Federal Government has indefinitely postponed the visit to Germany of Cambodian Interior Minister Sar Kheng which had been scheduled for the end of November 2017.”

German development cooperation with Cambodia which focuses on poverty reduction and access to quality health services by the poor remained unaffected for humanitarian reasons.

Initially, these measures were taken quietly. They only became public when the Federal Government had to respond to parliamentary questions on “Democracy and human rights in Cambodia” in February 2018. At that time, the matter was picked up by the Cambodian daily Phnom Penh Post, which on 19 February 2018 ran a story entitled “Germany puts pressure on Cambodia, ending preferential visa treatment for Hun Sen family and high-ranking officials”. The Cambodian Government first pretended to have no knowledge of the German measures, and then denied that Berlin had cancelled preferential visa treatment. Responding to media enquiries, the Federal Foreign Office confirmed the suspension of preferential visa treatment for Cambodian government members. A spokesperson for the Federal Foreign Office declared:

“The Foreign Office confirms the suspension of preferential visa treatment for private travel by Cambodian government members, including by Prime Minister Hun Sen and his family, by high-ranking military officials and the presidents of the highest Cambodian court.

The Foreign Office also confirms that Germany has encouraged other European Union members to impose similar measures following months of the Cambodian government’s crackdown on media outlets, NGOs and the political opposition.”

This led the Cambodian Ministry of Foreign Affairs and International Cooperation (MFAIC) on 22 February 2018 to issue a statement on the “Suspension of the Preferential Visa Treatment by the Federal Republic of Germany” which read as follows:

“The Embassy of the Federal Republic of Germany to the Kingdom of Cambodia has informed the MFAIC on 21 February 2018 of the suspension of the preferential visa treatment for Cambodia’s high-ranking officials. It has clarified however that such suspension does not have the same effect as a general visa restriction.

While the MFAIC can respect the sovereign decision of the German Government, we regret that such measures were taken without due consideration of Cambodia’s political realities and in total disregard of the legal and judicial independence of the country. The MFAIC considers the unilateral actions as politically motivated and prejudicially bias [sic], which ran counter to the ongoing efforts of the two countries’ long-standing ties and bilateral cooperation.

MFAIC considers that Germany’s reactions to Cambodia’s recent political development as hypocritical and a double standards [sic], considering its different treatment towards various countries on the similar issue of democracy and respect for human rights.

That decision notwithstanding, the MFAIC reiterates Cambodia’s unwavering commitment to pursuing a liberal multi-party democracy in conformity with the Cambodian Constitution, to enforcing the rule of law, and to holding the parliamentary elections on 29 July 2018 in a free, fair and orderly manner.”

The measures taken by Germany in response to the arrest of CNRP leader Kem Sokha and the subsequent forced dissolution of the CNRP could qualify in international law as acts of retorsion. Unlike countermeasures, measures of retorsion do not require an internationally wrongful act on the part of the addressee of the retorsion.

An internationally wrongful act on the part of Cambodia could be seen in the violation of the Paris Peace Accords. In the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Cambodia committed itself, inter alia, to “a system of liberal democracy, on the basis of pluralism” and to electoral procedures providing for “a full and fair opportunity to organize and participate in the electoral process.” However, Germany was not one of the 20 parties to that agreement.

The measures taken by Germany did not violate any rights of Cambodia under international law. It was within the sovereignty of Germany to withdraw preferential visa treatment, to receive Cambodian opposition leaders at the Federal Foreign Office in Berlin, to suspend the signing of a Memorandum of Understanding with Cambodia and to postpone the visit to Germany of a Cambodian government minister. While these measures may have amounted to unfriendly acts, they were not unlawful acts.

Acts of retorsion are an instrument of self-help in international law which is employed by a State in order to induce another State to cease either an unlawful or unfriendly act against that State. Depending on the circumstances, lawful acts damaging the political, economic or security interests of a State may amount to unfriendly acts. Considering the number of repressive regimes in the present-day international community of States, it is difficult to see how the repression of the political opposition and the media in Cambodia could be considered an unfriendly act against Germany, or even an unfriendly act erga omnes. Technically, the measures taken by Germany thus did not constitute acts of retorsion. But, the categorization of the German measures as acts of retorsion is immaterial, as any measure permissible as retorsion may also be lawfully employed by a State without this being a response to prior unfriendly conduct of another State. However, where such measures are not preceded by prior unlawful or unfriendly conduct they may themselves be considered to be unfriendly acts, in turn potentially giving rise to retorsion.

Category: Coercive measures short of the use of force

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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