Introduction

The treaty-making process is a critical aspect of a state’s engagement with the international community, reflecting its constitutional framework, legal traditions, and commitment to international law. Cambodia, a Southeast Asian nation with a history shaped by colonialism, conflict, and post-conflict reconstruction, presents a unique case study in this regard. Following the adoption of its 1993 Constitution after the Paris Peace Agreements of 1991, Cambodia has sought to rebuild its legal and political institutions while integrating into the global order through international commitments. This article explores Cambodia’s treaty-making process within its constitutional framework, examines its approach to the incorporation of treaties into national law, and assesses its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. By doing so, it sheds light on the mechanisms through which Cambodia enters into international agreements and offers insights for other states engaging with Cambodia in treaty relations.

The analysis proceeds in several sections. First, it outlines the constitutional provisions governing treaty-making in Cambodia, referencing specific articles of the 1993 Constitution. Second, it investigates whether Cambodia adopts a monist or dualist approach to the relationship between international and national law, with a particular focus on how treaties are translated into domestic legal obligations. Third, it examines Cambodia’s status with respect to the VCLT 1969 and discusses the implications of this status for other countries entering into treaties with Cambodia. Finally, the article provides a broader reflection on the challenges and opportunities in Cambodia’s treaty-making practices, considering its historical and political context.

Constitutional Framework for Treaty-Making in Cambodia

The legal basis for Cambodia’s treaty-making process is enshrined in the Constitution of the Kingdom of Cambodia, adopted on September 21, 1993, following the United Nations Transitional Authority in Cambodia (UNTAC) period. The Constitution establishes Cambodia as a constitutional monarchy with a parliamentary system, delineating the roles of key institutions in the conduct of foreign relations and the conclusion of international agreements. Several articles of the Constitution are directly relevant to the treaty-making process, reflecting a balance between executive authority, legislative oversight, and monarchical symbolism.

Article 55 of the Constitution is foundational to Cambodia’s engagement with international law. It states: “Any treaty and agreement incompatible with the independence, sovereignty, territorial integrity, neutrality and national unity of the Kingdom of Cambodia shall be annulled” (Constitution of Cambodia, 1993). This provision establishes a fundamental principle that treaties must align with Cambodia’s core national interests, providing a constitutional safeguard against agreements that could undermine the state’s autonomy or integrity. While this article does not detail the procedural aspects of treaty-making, it sets a substantive boundary for Cambodia’s international commitments.

The primary authority for entering into treaties lies with the executive branch, as articulated in Article 96 of the Constitution. This article empowers the Royal Government, headed by the Prime Minister, to conduct foreign affairs, including the negotiation and conclusion of international agreements. Specifically, Article 96 states that the Council of Ministers, under the leadership of the Prime Minister, is responsible for formulating and implementing national policy, which includes foreign relations (Constitution of Cambodia, 1993). In practice, the Ministry of Foreign Affairs and International Cooperation plays a key role in negotiating treaties on behalf of the government.

However, the executive’s role in treaty-making is subject to legislative oversight, as outlined in Article 90 of the Constitution. This article designates the National Assembly as the principal legislative body with the authority to approve international treaties and agreements. It states that the National Assembly shall “approve or annul treaties or international agreements” (Constitution of Cambodia, 1993). This provision indicates that, while the executive may negotiate and sign treaties, ratification or formal approval often requires the consent of the National Assembly, ensuring a democratic check on the executive’s foreign policy powers. Additionally, Article 91 extends this oversight to the Senate, the upper house of the Cambodian legislature, which reviews laws and treaties approved by the National Assembly, further reinforcing parliamentary involvement in the treaty-making process.

A unique feature of Cambodia’s constitutional framework is the symbolic role of the King in foreign affairs, as provided for in Article 8 and Article 24 of the Constitution. Article 8 establishes the King as the Head of State and a symbol of national unity, while Article 24 specifies that the King “shall sign and ratify international treaties and conventions after their approval by the National Assembly and the Senate” (Constitution of Cambodia, 1993). This role, though ceremonial in nature, underscores the monarchical character of Cambodia’s political system and ensures that the King remains a formal participant in the finalization of international commitments. In practice, the King’s ratification is a formality following legislative approval, but it carries significant cultural and political weight in the Cambodian context.

Taken together, these constitutional provisions create a structured treaty-making process in Cambodia that involves multiple branches of government. The executive, through the Royal Government, initiates and negotiates treaties; the legislature, through the National Assembly and Senate, provides approval; and the King offers formal ratification. This multi-tiered approach reflects a commitment to balancing executive efficiency with democratic accountability, while respecting Cambodia’s monarchical traditions. However, the practical implementation of these constitutional requirements can be influenced by political dynamics, including the dominance of the ruling Cambodian People’s Party (CPP), which may affect the degree of genuine legislative scrutiny over treaty-making decisions.

Monist or Dualist Approach: Treaties in Cambodia’s Legal System

A central question in the study of treaty-making processes is whether a state adopts a monist or dualist approach to the relationship between international and national law. In a monist system, international law is automatically incorporated into domestic law upon ratification of a treaty, without the need for further legislative action. In contrast, a dualist system treats international and national law as separate spheres, requiring specific domestic legislation to transform international obligations into enforceable national law. Determining Cambodia’s position on this spectrum is essential for understanding how treaties are implemented and enforced within its legal system.

Cambodia’s approach to the incorporation of treaties leans towards a monist system, as evidenced by Article 31 of the Constitution. This article declares: “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights” (Constitution of Cambodia, 1993). More broadly, Article 31 implies a direct recognition of international legal obligations within the domestic legal order, suggesting that ratified treaties related to human rights have immediate effect in Cambodian law without the need for additional legislative transformation. This constitutional provision aligns with a monist perspective, as it prioritizes the direct applicability of international norms in the national context.

However, Cambodia’s monism is not absolute and exhibits dualist tendencies in certain areas. While Article 31 prioritizes human rights treaties, the Constitution does not provide a blanket rule for the automatic incorporation of all international agreements. For treaties outside the scope of human rights, such as trade agreements or environmental conventions, the process of incorporation often requires specific implementing legislation or regulatory action by the National Assembly or the Royal Government. This dualist element is further reinforced by the practical reality of Cambodia’s legal system, where the judiciary and administrative bodies may lack the capacity or precedent to directly apply international law without clear domestic legal frameworks. As a result, Cambodia can be described as having a hybrid approach, with a monist inclination for human rights treaties and a dualist practice for other types of international agreements.

The translation of treaties into national law in Cambodia, therefore, depends on the nature of the treaty and the domestic legal mechanisms in place. For instance, Cambodia’s accession to the International Covenant on Civil and Political Rights (ICCPR) in 1992, as recognized under Article 31, allows courts to reference ICCPR provisions in human rights cases, though judicial familiarity with international law remains limited (Hor, 2012). Conversely, trade agreements like Cambodia’s participation in the World Trade Organization (WTO) required the enactment of domestic laws and regulations to align national policies with WTO obligations, illustrating a dualist requirement for legislative action (Ministry of Commerce, Cambodia, 2004). This hybrid approach reflects Cambodia’s ongoing efforts to integrate international commitments while addressing capacity constraints and prioritizing national sovereignty, as mandated by Article 55 of the Constitution.

The hybrid nature of Cambodia’s approach also raises questions about the hierarchy of norms within its legal system. While Article 31 suggests that international human rights law holds a privileged position in domestic law, there is no explicit constitutional provision addressing conflicts between international treaties and other national legislation. In practice, the Constitutional Council, established under Article 136 of the Constitution, may play a role in resolving such conflicts, though its jurisprudence on treaty-related matters remains underdeveloped. This ambiguity underscores the challenges of implementing international commitments in a legal system still recovering from decades of conflict and institutional disruption.

Cambodia and the Vienna Convention on the Law of Treaties (VCLT) 1969

The Vienna Convention on the Law of Treaties (VCLT), adopted on May 23, 1969, and entered into force on January 27, 1980, is widely regarded as the cornerstone of international treaty law. Codifying customary international law, the VCLT provides a comprehensive framework for the conclusion, interpretation, application, and termination of treaties (United Nations, 1980). For states party to the VCLT, its provisions offer clarity and predictability in treaty-making processes. For non-parties, the VCLT still holds significant influence as many of its rules are considered customary international law, binding even on states that have not ratified the convention.

Cambodia is not a party to the VCLT 1969. According to the records of the United Nations Treaty Collection, Cambodia has neither signed nor acceded to the Convention as of the latest available data (United Nations Treaty Collection, 2023). This status does not necessarily imply a rejection of the principles enshrined in the VCLT, as many of its provisions, such as those on treaty formation (Articles 6-18) and pacta sunt servanda (Article 26), are widely accepted as customary international law. Cambodia’s treaty-making practices, as guided by its Constitution and international engagements, are likely influenced by these customary norms, even in the absence of formal accession to the VCLT.

The absence of Cambodia’s participation in the VCLT may be attributed to historical and institutional factors. During the period following the VCLT’s adoption, Cambodia was embroiled in internal conflict, including the Khmer Rouge regime (1975-1979) and subsequent Vietnamese occupation, which prevented active engagement with international legal frameworks. Post-1993, as Cambodia rebuilt its institutions, priority was given to domestic legal reforms and key multilateral commitments over formal accession to treaties like the VCLT. Nonetheless, Cambodia’s participation in other international organizations and treaties, such as the United Nations and the Association of Southeast Asian Nations (ASEAN), suggests an implicit acceptance of VCLT principles in its treaty-making conduct.

For other countries entering into treaties with Cambodia, the non-party status to the VCLT has several implications. First, while Cambodia is not formally bound by the VCLT, other states can reasonably expect Cambodia to adhere to customary international law principles reflected in the Convention, such as good faith in treaty negotiations and respect for treaty obligations. Second, given Cambodia’s hybrid monist-dualist approach, foreign partners should be aware that the implementation of treaty obligations may require domestic legislative action, particularly for non-human rights agreements. Engaging with Cambodia’s Ministry of Foreign Affairs and International Cooperation and ensuring parliamentary approval in Cambodia can facilitate smoother treaty implementation.

Additionally, other states may consider Cambodia’s historical context and capacity constraints when negotiating treaties. For instance, providing technical assistance or capacity-building support during treaty negotiations could enhance Cambodia’s ability to comply with international commitments. Furthermore, referencing VCLT principles explicitly in bilateral or multilateral agreements with Cambodia may help establish a common legal framework, even if Cambodia is not a party to the Convention. Such an approach can promote mutual understanding and reduce the risk of disputes over treaty interpretation or application.

Challenges and Opportunities in Cambodia’s Treaty-Making Process

Cambodia’s treaty-making process operates within a complex historical and political context that presents both challenges and opportunities. One significant challenge is the limited institutional capacity to negotiate, ratify, and implement international agreements effectively. The legacy of conflict and the Khmer Rouge era left Cambodia’s legal and administrative systems severely weakened, and despite progress since 1993, gaps remain in judicial independence, legal expertise, and enforcement mechanisms (Un, 2011). These constraints can delay the domestic incorporation of treaties or lead to inconsistent application of international obligations, particularly in areas requiring technical expertise, such as environmental or intellectual property agreements.

Another challenge is the political centralization of power in Cambodia, which may undermine the constitutional checks and balances in the treaty-making process. The dominance of the Cambodian People’s Party (CPP) in the National Assembly and Senate can limit genuine legislative debate over treaties, potentially reducing the role of parliamentary oversight to a formality. This dynamic raises concerns about transparency and accountability in Cambodia’s international commitments, especially in agreements involving significant economic or political stakes, such as those with major powers like China (Heng, 2019).

Despite these challenges, there are notable opportunities for Cambodia to strengthen its treaty-making practices. The country’s integration into regional and global frameworks, such as ASEAN and the United Nations, offers platforms for capacity-building and legal harmonization. For instance, ASEAN’s emphasis on regional cooperation and treaty frameworks, like the ASEAN Charter, provides Cambodia with models for aligning its domestic processes with international standards. Moreover, Cambodia’s commitment to human rights under Article 31 of the Constitution and its participation in treaties like the ICCPR demonstrate a willingness to engage with international norms, which can be leveraged to attract development assistance and technical support from the international community.

Looking forward, Cambodia could benefit from formalizing clearer guidelines for the incorporation of treaties into national law, perhaps through amendments to existing legislation or the development of a comprehensive treaty implementation framework. Enhancing judicial training on international law and establishing a more robust role for the Constitutional Council in resolving conflicts between international and domestic law could also improve the coherence of Cambodia’s legal system. Such reforms would not only strengthen Cambodia’s treaty-making capacity but also enhance its credibility as a reliable partner in international relations.

Conclusion

Cambodia’s treaty-making process is shaped by a constitutional framework that distributes authority across the executive, legislative, and monarchical branches of government. Articles 55, 90, 91, 96, and 24 of the 1993 Constitution collectively establish a structured process for negotiating, approving, and ratifying treaties, balancing efficiency with accountability. Cambodia exhibits a hybrid monist-dualist approach to treaties, with a monist inclination for human rights agreements under Article 31 and a dualist requirement for legislative action in other areas. While not a party to the Vienna Convention on the Law of Treaties 1969, Cambodia’s treaty practices are influenced by customary international law principles, offering a basis for engagement with other states.

For the international community, understanding Cambodia’s legal and political context is crucial for effective treaty-making. Other countries should account for Cambodia’s capacity constraints, hybrid legal approach, and the need for domestic legislative action when entering into agreements. By providing technical support and referencing customary norms in treaty texts, foreign partners can facilitate smoother cooperation with Cambodia. Ultimately, Cambodia’s ongoing efforts to rebuild its institutions and integrate into the global order present opportunities to strengthen its treaty-making processes, ensuring that international commitments contribute to sustainable development and the rule of law.

References

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  • Hor, P. (2012). The Role of International Law in Cambodian Courts. Journal of Southeast Asian Human Rights, 6(1), 89-105.
  • Ministry of Commerce, Cambodia. (2004). Report on WTO Accession and Implementation. Phnom Penh: Government of Cambodia.
  • Un, K. (2011). Cambodia: Moving Away from Democracy? International Political Science Review, 32(5), 546-562.
  • United Nations. (1980). Vienna Convention on the Law of Treaties, 1969. Entered into force on January 27, 1980. United Nations Treaty Series, vol. 1155, p. 331.
  • United Nations Treaty Collection. (2023). Status of Treaties: Vienna Convention on the Law of Treaties. Retrieved from the United Nations Treaty Collection database.