by Bora Touch
LawyerSyndey, Australia
Cambodia has both historical and legal grounds for laying claim to legitimate title over the Mekong delta areas of Kampuchea Krom ("Lower Cambodia," currently Southern Vietnam) and the island of Koh Tral ("Tral Island," also known as Phu Quoc). (See maps below)
Historic Title
Cambodian rule over Khmer Krom lands dates back many centuries. A Cambodian Constitution, known as "Kram Srok," promulgated in 1615 (Grand Era 1693) under His Majesty Chey Cheystha Reamea Eysaur clearly lists Khmer Krom provinces and their governors and titles. A French official cartographer in documenting the region in a map dated 1686, designated delta territories and Koh Trol as parts of Cambodia. British official cartographer John Crawfurd did the same in 1828. In an internal British official memorandum (1778) sent to Governor-General Hastings, Charles Chapman, a British envoy to Cochin China, rightly advised Hastings that “Donai...is properly a province of Cambodia” (J.I.A.E. & A. Vol. 5, 1852). When the French arrived in the late 19th century, Cambodia’s front line was at the Vinh Te Canal, and the delta region up to Dong Nai province still appeared on Southeast Asian maps as a part of Cambodia.
Continuous Claim
Cambodia has never given up its historic claim to Khmer Krom territories or to Koh Tral. For instance, a few months before France landed in Saigon, King Ang Duong sent Emperor Napoleon III a letter warning him about Cambodia’s ownership of the Khmer Krom territories that had been seized by the Vietnamese. The King’s letter dated 25 November 1856 states:
...that of Don-nay, seized more than two hundred years ago; but much more recently those of Saigon, Long-Ho; Psarded, Mi-tho, Pra-Trepang, Ongmor, Bassac, Moatchruk, Cramuon-Sa, TiecKhmau, Pean [Hatien], and the island of Koh Trol and Trelach [Poulo Condore]. If by chance, the Annamese [Vietnamese] would offer any of these lands to Your Majesty, I beg him not to accept them, for they belong to Cambodia. I beg Your Majesty to have compassion for me and my people so that we may see an end to our loss rather than suffocate in this narrow kingdom.
On 19 February 1859, King Duong attempted to retake the territories by force. Although his troops were crushed, both the attempt and the King's letter to the Emperor of France demonstrates that Cambodia has never given up title over the territory. The King died the following year.
Almost 100 years later, King Duong's great-great-grandson, King Norodom Sihanouk, continued to claim the territories as Khmer and attempted to reclaim them from the Vietnamese. When the Japanese were in control of Indochina, the King, echoing King Duong’s letter to Napoleon III, informed the Japanese by his letter dated 25 June 1945 of Cambodia’s title to the territories. During the Geneva Conference, by Memorandum dated 24 April 1954, Cambodia again claimed the territories and demanded their return. All Khmer claims apparently have fallen on deaf ears.
French Transfer and the Brevie Line
If it had not been for Ho Chi Minh, Cambodia might have regained some of its territories in 1949. By this time, however, the French had decided to install Emperor Bao Dai to the throne so that he would help them harass Ho Chi Minh’s forces in the North. Since a majority of the French National Assembly deputies then were communists who supported their communist comrade, Ho Chi Minh, Cambodia’s claim was dropped from the Assembly’s agenda and France gave Cochin China to Vietnam.
The Brevie Line, the line used to demarcate territory giving Koh Tral to Vietnam, does not and should not have legal effect in this instance. The reason the Brevie Line was drawn dates back to 1913 when Cochin China and Cambodia received an application for mining concessions on some of the offshore islands. Because of Cambodia's historic claims, the Hatien and Kampot French Residents unilaterally sought advise from the Governor-General of Indochina. As a result, the French Governor-General Jules Brevie of Indochina, by Letter of 31 January 1939, unilaterally proclaimed an administrative line (Brevie Line) that followed an azimuth of 126 degrees from true north to the point where the land boundary between Cambodia and Cochin China met the coast. This line intersected the southern part of Koh Tral. Brevie also decided that police and administrative jurisdiction of this area should be given to Cochin China, the French colony. He made it clear, however, that “the question of territorial dependence of these islands remains reserved.”
It is clear from Brevie’s letter that the drawing of the Brevie line was for administrative purposes only. Brevie's intention was not to give Koh Tral to Vietnam, especially since a Vietnam did even not exist at the time. Cochin China was, after all, then still a French colony. Furthermore, even had it been Brevie's intention to give Koh Tral to a future Vietnam, he would not have had the power to do so because Cambodia at this time was a French protectorate only, not a colony. Therefore, the international law principle of utis posseditis (colonial administrative division become international boundary after de-colonization) does not apply to this case, and the Brevie line should not be taken as an official delineation of territory, especially considering Brevie himself expressly stated that “the question of territorial dependence of these islands remains reserved.”
Vietnam's own position casts further doubt as to the legitimacy of using the Brevie line to demarcate Cambodian-Vietnam boundaries. Successive Vietnamese governments, including the current one, have not recognized the Brevie Line as maritime border. Considering traditional title, Vietnam as colonizing power, and the island’s location, Cambodia is entitled to possession of the island of Koh Tral.
Recent Events
Unlike prior regimes, the Khmer Rouge did not make any claim to Koh Tral at all. They in fact begged the Vietnamese to recognize the Brevie Line as the official boundary, thus willing to accept the application of the international law principle of Uti Possidetis (although as stated above, this principle does not strictly apply to Cambodia as it was only a protectorate). In doing so, the KR reminded the Vietnamese of its 1967 Declaration that Vietnam respected the Brevie Line as the boundary. Vietnam refused to apply international law and ignored its 1967 Declaration. Instead, Vietnam demanded that Cambodia concede even more of its territorial waters. As is documented in the minutes of the negotiations, the KR vehemently objected to the demand and announced that they would not give Vietnam an inch past the Brevie line.
Vietnam did not want to accept the Brevie Line as a boundary and insisted that the principle of equidistance be used instead because by using the latter principle to determine maritime ownership (i.e., a line of equidistance between Cambodian and Vietnamese islands lying north and south of the Brevie Line), Vietnam would gain an area of sea and seabed measuring at least 860 square nautical miles. Vietnam ignored the fact that the equidistance principle had been abandoned in international law since 1969. Additionally, Vietnam, in August 1978, made an unreasonable and unjustifiable claim to Koh Poulo Wai, an island north of the Brevie Line. The KR Foreign Ministry through its Radio Phnom Penh rightly reacted: “Poulo Wai and the surrounding territorial waters have been under the sovereignty of Cambodia since time immemorial” (Honolulu Advertiser 21/8/78).
The KR’s refusal to give in to Vietnam’s demands is one reason why Vietnam invaded Cambodia in December 1978. As a result, the Heng Samrin/Hun Sen regime signed treaties of 1983 and 1985 (likely under Vietnamese instruction or force) giving all the disputed territories to Vietnam. The so-called Historical Waters Treaty of 1982 signed by Hun Sen and Nguyen Co Thach basically gave to Vietnam the territorial waters it had demanded of the KR (See Map attached to this 1982 Treaty). As these treaties were sign while Vietnamese troops were occupying Cambodia (meaning there is a high probability they were signed by officials under threat or duress), their validity is subject to scrutiny.
Passage of Time
Has Cambodia legally lost Kampuchea Krom and Koh Trol due to the fact that the Vietnamese and French have been colonizers of these territories for so many years?
Passage of time does not affect a nation's rightful title to territories once under its rule, as foreign colonization in Southeast Asia and elsewhere demonstrate. The Philippines was conquered and colonized by foreign powers from 1564 to 1946. It remained a colony of Spain from 1564 until 1898, when, after Spain lost its war to US forces led by Admiral Dewey, it was forced by the 1898 treaty to sell the Philippines to America for 20 dollars. The Philippines thereafter remained under American rule until July 1946, for a total of 382 years under colonization. Another similar precedent is the State of Israel which was only “re-established” in 1948 after a 2000-year absence. Assuming that the Vietnamese completed their colonization of Khmer Krom in 1789, by 1946 the Khmer delta territories have only been colonized for approximately 157 years, by 2002, 213 years.
De-colonization is compulsory under international law and the UN Charter, to which Vietnam is a party. The boundary line between Kep/Kompong Som and Koh Tral are collateral to the central issue of de-colonization. Under international law, Cambodia has neither lost Kampuchea Krom nor any other Khmer Krom territories.
>>> Read letters by the author to King Sihanouk (Sept 02) and Chairman of Cambodia-Vietnam Border Commission Var Kim Hong (Feb 03) further addressing Cambodian territorial boundaries >>>>>>
Learn more about the Khmer Krom at the Khmer Kampuchea Krom Federation website >>>
Sources: http://www.khmerinstitute.org/articles/art09.html
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