Touted by the government as marking an end to “interference” in Cambodia’s internal affairs, observers say the much-debated wording of a new memorandum of understanding with the UN’s Office of the High Commissioner for Human Rights (OHCHR) has, in fact, no legal implications at all.
The OHCHR’s MoU lapsed in December a year ago and was not renewed until Tuesday afternoon, just 10 days before the government had threatened to eject the human rights office if a new memorandum had not been signed.
The sticking point for these past 12 months had been the government’s insistence on the inclusion of an explicit reference to Article 2, Paragraph 7 of the UN Charter, which states that nothing within the charter authorises “the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”.
The government has long regarded OHCHR pronouncements on human rights issues as an intrusion on Cambodia’s sovereignty; it believes that Paragraph 7’s prohibition on UN intervention in domestic matters also prohibits those pronouncements. Legal and human rights experts, however, said the government had misunderstood the principle of non-intervention.
“That language is, I assume, an effort to push OHCHR to refrain from criticism, but it has no legal value,” International Commission of Jurists regional director Sam Zafiri said. “The notion that human rights monitoring violates sovereignty has been rejected conclusively years ago.”
A 1986 ruling by the International Court of Justice found that for an action to violate the principle of non-intervention, it must include an element of coercion, such as the use of force.
Contacted yesterday, Foreign Ministry spokesman Chum Sounry refused to explain the government’s interpretation of non-intervention, but previous outbursts by government officials over OHCHR’s “interference” have come in response to statements given to the media.
Andrea Giorgetta, of the International Federation of Human Rights, said via email yesterday that while the government had “played hardball” over the MoU, “It knew full well that kicking the UN out of Cambodia would have been counterproductive.”
He called the reference to Paragraph 7 a “face-saving solution” that allowed the government to “reiterate its absurd claim that UN human rights monitoring impinges on Cambodia’s sovereignty”.
“In practice, this clause is likely to be irrelevant although one can expect Phnom Penh will invoke it from time to time.”
Ear Sophal, author of Aid Dependence in Cambodia: How Foreign Assistance Undermines Democracy, went one further, describing Tuesday’s signing as “a win for OHCHR”, noting this was far from the first time the government had threatened to shut down the country’s human rights office.
“If the goal was to get rid of them, epic fail,” Sophal said in an email. “It was a game of chicken and all they got was this little clause? Looks to me like OHCHR lived to fight another day.”
A Geneva-based spokesperson for OHCHR said in an email yesterday that the MoU “was the result of a mutually acceptable agreement that takes into account the position of both sides” and that “the agreement reached involves no compromise on our mandate”.