[The following is the Research Paper which I submitted as part of the requirements for completion of my Master’s in Development Studies at the Institute of Social Studies. It was submitted on 19 November 2007.]
Cambodia human right political right European Union development assistance conditionality aid “political space” “Cambodia civil society”
Institute of Social Studies
Graduate School of Development Studies
THE EU AND POLITICAL RIGHTS IN CAMBODIA:
PLAYING THE ROLE OF A NORMATIVE POWER?
A Research Paper presented by:
in partial fulfilment of the requirements for obtaining the degree of
Masters of Arts in Development Studies
Human Rights, Development and Social Justice
Members of the examining committee:
Dr. Karin Arts (supervisor)
Dr. Karim Knio (2nd reader)
The Hague, The Netherlands
This document represents part of the author’s study programme while at the Institute of Social Studies. The views stated therein are those of the author and not necessarily those of the Institute.
Research papers are not made available for circulation outside of the Institute.
Postal address: Institute of Social Studies
P.O. Box 29776
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Location: Kortenaerkade 12
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Telephone: +31 70 426 0460
Fax: +31 70 426 0799
This paper is dedicated to the memory of the victims of the Khmer Rouge and all those who died in the war in Indochina, whether Vietnamese, American, Khmer, Laotian or other nationalities.
I’d like to thank my supervisor for her patience, and my second reader for taking extra time. Many thanks also to all those fellow students who offered constructive feedback. I owe a deep gratitude to all the people in Cambodia and elsewhere who took the time to speak with me for this research. The help of Rogier van Mansvelt and Maia Diokno while in Cambodia was indispensable.
3. Research Questions
4. Methodology and Limitations
II. Concepts and Theoretical Framework
1. Relevant Concepts
2. Theoretical Framework
2.1 Critical Writing on Human Rights Aid Conditionality
2.2 Constructs of the EU as Normative Power
3. Human Rights Framework
III. The Civil and Political Rights Situation in Cambodia
1. Civil and Political Rights in Cambodia: the Character of the Problem
2. Narrative of Human Rights Abuses and Declining Political Space
2.1 The Anti- Thai Riots and their Aftermath
3. Conduct of Elections
IV. The Donor Context and Evaluation of the EU donors
1. The Donor Context
2. Supporting Human Rights through Funding
2.1 Specific Donors
2.1.1 European Commission
2.1.2 EU Member States
2.1.3 Multiple Donor Analysis
2.2 Overall Assessment of the EU and EUMS in funding activities
2.2.1 Analysis of the Modalities of Aid
3. EU as an agent in Political Dialogue
3.1 The 2005-06 Arrest of Civil Society Activists
3.2 EU as Part of the CG Process
4. Conclusion and Analysis
Annex I. List of interviewees
Annex II. Articles cited from the ICCPR
Annex III. Civil and Political Rights related EIDHR projects
Table 1. Constructs of NPE in Cambodian HR Context
List of Acronyms
ADHOC- Cambodian Human Rights and Development Association
AFD- French Agency for Development (Development Cooperation agency)
AFEC- Association for Freedom of Expression in Cambodia
CCHR- Cambodian Center for Human Rights
CDCF- Cambodian Development Cooperation Facility
CDP- Cambodian Defender’s Project
CG- Consultative Group
CHRAC- Cambodian Human Rights Action Committee
CLEC- Cambodian Legal Education Center
COMFREL- Committee for Free and Fair Elections in Cambodia
CPP- Cambodian People’s Party
CPR- civil and political rights
CSD- Center for Social Development
D&D- Decentralization and Deconcentration
DANIDA- Danish Development Cooperation Agency
DCA- Danish Church Aid
DFID- Department for International Development (UK)
EIDHR- European Initiative for Democracy and Human Rights
EUMS- EU member states
FACT- Fisheries Action Coalition Team
FUNCINPEC- United National Front for an Independent, Peaceful, and Cooperative Cambodia (political party)
GAD- Gender and Development Cambodia
GW- Global Witness
HR- human rights
HRW- Human Rights Watch
ICSO- Indigenous Community Support Organization
IMF- International Monetary Fund
JMI- Joint Monitoring Indicators
KAF- Konrad Adenauer Foundation
KKKHRDA- Khmer Kampuchea Krom Human Rights and Development Assoc.
KRT- Khmer Rouge Tribunal
KYA- Khmer Youth Association
LAC- Legal Aid of Cambodia
LICADHO- Cambodian League for the Promotion and Defense of Human Rights
LJR- Legal and Judicial Reform
NA- National Assembly
NPE- Normative Power Europe
OHCHR- Office of the High Commissioner for Human Rights
Oxfam NOVIB- Dutch affiliate of Oxfam International
SIDA- Swedish Development Cooperation Agency
SRP- Sam Rainsy Party
SRSG- Special Representative of the Secretary General
TWG- Technical Working Group
UDHR- Universal Declaration on Human Rights
UNTAC- United Nations Transitional Authority in Cambodia
WB- World Bank
Chapter No. 1
In the context of a controversial border treaty with Vietnam in October 2005, the Cambodian government, headed by Prime Minister Hun Sen, began to arrest members of civil society for exercise of the right to freedom of expression. Independent radio announcer Mam Sonando was arrested for airing a view critical of the border treaty, while Rong Chhun was arrested for signing a statement asking people to mourn the effect of the border treaty. Three others fled abroad under identical warrants to Rong. On International Human Rights Day, 2005, the Cambodian Center for Human Rights was displaying an old banner with public comments hand-written on it about the government. When the police noticed it, the organizers immediately took it down. Nonetheless, human right and legal aid NGO leaders Kem Sokha, Yeng Virak, and Pa Ngoun Teang were charged with defamation and arrested in connection with this banner. The cumulative effect of these incidents brought about a strong reaction from local civil society, international NGOs, and the international diplomatic community calling for their release. (USAID, 2006: 1-3) In January 2006, after extended interventions and pressure from a variety of sources, including Cambodian civil society, the five people who had been arrested from October to January were released by the order of Hun Sen. (LICADHO, 2006a: 8,10-11) This incident became a defining human rights event in recent times in Cambodia.
The theory of Europe as a Normative Power, developed by Ian Manners from the concept of a civilian power, has become a prominent theory which attempts to define the EU as a unique actor in world politics. (Manners, 2006: 169) This distinction is asserted based on the EU’s character as a multilateral organization which also sometimes acts in a state-like capacity, its reliance on non-military methods, and its emphasis on international law and human rights. (Manners, 2004: 5) This theory has been challenged on several theoretical grounds, and has spawned a variety of applications to empirical cases in order to test its validity and reflect on the theory. (Diez, 2005: 623; Manners, 2007: 119) This paper continues this venture by assessing the theory in light of the EU’s actions to promote civil and political rights and democratic governance in Cambodia in the period 2003-07. This paper first constructs a model of how the EU would act if it were a normative power in the case of Cambodia’s rights context, and then evaluates to determine whether the EU donors in Cambodia are actually fulfilling their role as a normative power.
This paper begins by critically examining whether Cambodia is respecting its obligations as a state party to the International Covenant on Civil and Political Rights (ICCPR), and describing the characteristics of the Cambodian government’s respect or abuse of these rights. This analysis will reveal that the Cambodian government has regularly violated some civil and political rights since 2003 in a way that has diminished democratic space and the potential for meaningful checks on the power of the Executive both from within the government and from civil society. The wide range of rights abuses and systematic reduction of democratic space is negatively affecting the Cambodian people by preventing their meaningful participation in governance.
The paper then reviews the efforts of some of the EU institutions and member states to influence the civil and political rights situation by funding and engaging in political or human rights dialogue with the Cambodian government. This information will then be analyzed to discuss in what ways the European Union and EUMS have or have not acted as a Normative Power in the case of Cambodia. The paper looks at the civil and political rights situation especially in the last five years, while examining funding channels existing at the current time and recent time as information permits.
This paper will argue that while the EU has acted according to the construct of a normative power in some aspects, in other ways it has failed to fulfil this role. In the area of funding for human rights activities, the Commission and EU donors studied have made some effort to challenge the status quo in Cambodia by providing support to a wide range of activities which promote “demand” for civil and political rights by citizens and civil society. However, probably more funding should be directed towards activities supporting civil and political rights in a more direct way, and some EU donors are not really funding CPR related activities at all. With regards to political dialogue and conditionality, with the exception of a few instances the European Union donors have made insufficient effort, at least publicly, to persuade the government in this way. Thus, in order to act as a normative power as constructed in this paper, the EU donors would need to make more effort to influence the civil and political rights situation through funding and dialogue with the government.
The potential role of aid providing countries in countries like Cambodia is significant in the possibility of impacting the quality of life of citizens who have suffered from the most serious rights abuses under previous regimes in Cambodia. (Ghai, 2006b) There has been a great deal of attention to the impact of international donors over the 14 years of their aid in relation to human development. (Reynolds, 2004) Some studies have examined the role of the international community in the political direction of the country (Hughes, 2003. p.85-114), while others have directed appeals to the international community and donors, (for example, LICADHO, 2006a, and Ghai, 2007a: paragraph 89). However, few, if any studies have examined the role of donor countries from the European Union and the EU, especially as Cambodia is a small, non- ACP country in a region of lesser EU influence.
As Cambodia is a country with an unstable past, achieving political stability through power sharing and structures which enable a peaceful transition of power, were a key goal of the governance structure established in 1993. (Richmond and Franks, 2007: 27-8) The dysfunctional operation of this structure, and its subsequent failure to integrate all parties and represent diverse popular interests, could lead to a deterioration of the political situation and future instability for a country still struggling to step out of the least developed country (LDC) status. (LICADHO, 2006a: 2; DFID, 2007: 26) The use of aid relationships as a way of influencing the behaviour of recipient governments in relation to human rights is the subject of a significant academic debate, yet case studies are less common, especially about Cambodia. The specific case of Cambodia may reveal insights about the role that aid relationships can and should play in the realization of rights in recipient countries.
Further, the European Union has made human rights central to its institutions and external relations, perhaps to a greater degree than any other multilateral organization, or single country. (Borzel & Risse, 2004: 1-2) Whether the EU actually exercises much influence on human rights in its relations, especially with developing countries in aid relationships, is debatable, a debate which this paper can address. (Olsen, 1998: 343) The theory of the EU as a normative power is consistent with the perception of the EU as an entity which emphasizes human rights, as it asserts that the EU is unique as a normative force in the world. (Manners, 2004: 4-5; 2007: 116) Since human rights are essentially normative in content, it is fitting that a power perceived to be normative would respect and promote these rights. Assessing the EU’s actions in Cambodia offers the chance to evaluate the validity of this theory in light of the evidence of one case.
The EU and EUMS could be evaluated as a normative power in a variety of areas, and for a much longer period than the scope of this paper, as they have contributed to development and human rights activities, as well as support for elections since the 1990s. (Interview) Currently, the European Commission and bilateral donors maintain a large contribution of aid to Cambodia, among the top donors, if considered including bilateral contributions, comprising 137 million euros in 2006. (European Commission, 2006b) This amounts to more than any other single country donor, with Japan being the largest country donor at 101 million USD (2005) (SIDA, 2006) The Consultative Group is the main group of donors for Cambodia, including the “western” donors and Japan, which held its first meeting in 1996. (Teramoto and Ezaki, 2002: 109) The Consultative Group makes annual decisions about the level of aid funding for Cambodia, which reflects the donors’ perceptions of the government as well as the changing needs of the country. It is also an opportunity for the donors to exchange views with the government and advocate for reforms, as well as exercise conditionality in their aid allocations (Mosolf).
As a proposed normative power in the case of developing third countries, the EU has several policy tools available, including conditionality. EU aid policy in general is guided by its policy towards the ACP countries (African Carribean and Pacific), which have been established in successive conventions, the most recent being the Cotonou Convention. These conventions allow for the use of conditionality in aid, meaning that the EU can withdraw aid for real or perceived failures on the part of the recipient countries. (Miller, 2004: 10,16) The EU and Cambodia signed the more basic EC- Cambodia Cooperation Agreement in 1997, which contains more limited reference to human rights than the Cotonou Convention. The agreement states as its article 1, that “Respect for the democratic principles and fundamental human rights established by the UDHR inspires the internal and international policies of the Community and of Cambodia and constitutes an essential element of this agreement.” This, in combination with Article 19 of the agreement, “Non- execution of the agreement” allows either party to suspend the agreement if its terms are violated, including the clause on human rights.
The countries of the European Union and the Commission have a history of involvement in Cambodia in the realm of human rights at least since the Paris Peace Accords established the terms of a peace treaty between the Khmer Rouge and the government in Phnom Penh at that time. (Interview) Since then, these countries have maintained a large amount of aid to Cambodia, including funding for human rights NGOs, legal aid programs, elections and other support for civil society designed to promote democracy, democratic space, and respect for civil and political rights. As major donors to Cambodia, these countries maintained an active hand diplomatically in guiding the country towards stability, recovery and economic development. But the question remains of whether the Commission and the EU member states have done enough to promote civil and political rights in Cambodia to merit the distinction of being called a normative power, as examined in the last 5 years.
3 Research questions
Have the EU and EUMS acted as a normative power in the case of Cambodia’s civil and political rights situation?
What characterizes the civil and political rights situation in Cambodia? In what ways has democratic space been expanded or contracted by the Cambodia government? What violations of civil and political rights can be observed, and what structures and motives lay behind them?
What construction of the EU as a normative power is most relevant and useful in evaluating the EU’s actions in Cambodia?
What would characterize the EU and EUMS actions in Cambodia if they were acting as a normative power in relation to civil and political rights in Cambodia?
What have the EU and EUMS done in Cambodia in the last 5 years, including political dialogue/ action/ conditionality, funding, and aid modality, in order to impact the situation of civil and political rights?
Have these actions been sufficient to characterize the EU and EUMS as a normative power in relation to civil and political rights in Cambodia? In what ways have these actions been sufficient and in what ways insufficient? If these actions were insufficient, why?
4 Methodology and Limitations
This study is intended to influence the debate on CPR in Cambodia and the EU’s role in this, and as such is targeted to stakeholders in Cambodian civil society and the Cambodian government, as well as international actors such as donors and INGOs. For this study an interview based methodology was used, meaning that in addition to academic work and grey material, the primary data source is interviews with practitioners and stakeholders involved in Cambodia. The interviewees consisted primarily of local NGO aid recipients, international NGOs, donor agencies, as well as journalists, human rights defenders, a government official, a union leader and a leading opposition party figure. Interviewees were selected for a variety of reasons- stature in the human rights community or donor community, perceived ability to comment on the donors from the EU or in general, direct relation to a specific right or group of rights, and representatives of key stakeholders in the political process. Implementing NGOs and donor related agencies were the most numerous. Interviews were conducted in an open ended fashion considering the time limitations and area of expertise of the interviewee. The interviews, however, were guided by underlying objectives based on the research questions. A list of interviewees is contained in the Annex I, and interviews will be cited in the text according to the number assigned in the annex.
Many of the projects and programs discussed below contain some element of promotion of civil and political rights, but their impact on this group of rights would be less than a project focused exclusively on CPR. Thus, to evaluate how closely an activity would impact these rights, three categories of activities are constructed- a) activities primarily related to CPR, b) activities with a medium level of CPR emphasis, and c) activities which have marginal effect on this particular group of rights. The term “primary” will be applied to an activity funded if its core component is related to a civil or political right. Funding for elections related activities is an example of this. An activity will be referred to as “medium” if it contains civil and political rights related activities as a primary component, perhaps half of the activities, or if its activities primarily involve the exercise of civil and political rights. The term “marginal” will be used if the activity includes civil and political rights in only a minor way, or as a tertiary activity (a minor component of a project). These conceptions will be applied by assessing the content, the target group, and whether the activity actually involves the exercise of these rights.
The activities of the Commission and EUMS as expressed in both funding and diplomatic efforts will be examined in the context of the study. For the funding channel, the Commission, and six EU member states- France, Germany, the UK, Sweden, Denmark, and Netherlands will be examined. These countries were chosen due to their importance in the country, as the UK, France and Germany have embassies in Cambodia, and for their significance as donors overall and as donors to human rights in Cambodia. (Interview; European Commission, 2006b) For the assessment of the political dialogue channel, due to the dearth of information in general, the scope has been widened to include the main EU actors in Cambodia as well as the EU institutions like the European Parliament. (Mosolf)
A variety of obstacles were encountered in this research. It soon became apparent, for example, that funding figures would not be widely forthcoming. The wide range of donors, made it difficult to assess all of the funding channels. Time as well made it impossible to trace all funding channels and locate all diplomatic statements and interviews. This led to a refinement of the research questions to exclude reliance on quantitative figures. Many interviewees were only able to comment on international donors in general, while others were able to provide short, conventional wisdom summaries of the positions of the major EUMS donors, without significant depth. This led the researcher to search out interviewees with expertise in the EU. Perhaps not surprisingly considering their position either as funding recipients or donors themselves, many interviewees were reluctant to criticize the EU donors. Yet critical voices were magnified by deeper interviews, and a critical argument can often be inferred from events. Finally, it was difficult to research the existence of political dialogue in relation to these rights, as it is a sensitive issue shrouded in a degree of secrecy. This led to one instance in which a cited source is contrasted with an anonymous source, but this has been countered by linking the anonymous respondent to a reputable type of agency. Despite these limitations, sufficient evidence was found to examine the EU donors’ actions on CPR in Cambodia.
Chapter no. 2
Concepts and Theoretical Framework
1 Relevant Concepts
In addition to the theoretical framework of Normative Power Europe which follows, the concepts of conditionality and democratic space will be utilized in relation to the actions of the EU donors. Political rights, as utilized in this study, will be developed under the section “Human Rights framework”.
Negative conditionality occurs in the event that a donor country delays, reduces, or eliminates benefits to the recipient country, including aid, trade, diplomatic ties, and military cooperation, among others, in the event of a perceived failure to respect human rights conditions. (Fierro, 2003: 100-101) Donors may also threaten to enact negative conditionality as a way to influence the behaviour of states. Due to the possible negative ramifications of such measures, the EU has committed to take negative measures only when all other channels of influence have been exhausted. (Arts, 2000: 320) This study will examine the use of negative conditionality in the constructs of normative power.
Positive conditionality, on the other hand, attempts to promote respect for human rights through dialogue and the support of concrete projects which advance human rights (among others). This type of conditionality can most clearly be seen in donor support for elections, governmental institutions related to the rule of law, and funding for NGOs which promote human rights and form part of civil society. (Ibid: 289-290) Fierro defines positive conditionality as the promise of incentives in the event that a government protects human rights and lives up to democratic standards. (2003: 100) This study will utilize the concept of positive conditionality both to discuss the constructions of the EU as a normative power, and in the context of EU donor funding for civil and political rights related activities.
The term democratic space is used in the Cambodian context to describe the space within which civil society groups and political parties influence public discourse. (see for example, Mansfield & MacLeod, 2002; LICADHO, 2006a: 8) However, this concept, while used in the titles of two sources, (Alagappa, 2004; Brown, 2002) is not well defined in academic literature. Springer, writing in the context of an analysis of political events in Cambodia in the late 90s, refers to public space which the government seeks to control, but which is actually contested by public groups in a way which constructs the space in a dynamic of conflict. The ‘unmediated interaction” view of public space sees it “as a site where ‘the voiceless’ can materialize their claims…[this] view envisions public space as a crucible for democracy” (2005: 6) Franck discusses the established right to participation and freedom of expression as components of the “emerging right to democratic governance”, towards which the international system is evolving. (1992: 90) For the purpose of this paper, these ideas will be combined to represent democratic space as a contested and constructed public space in which political rights are expressed in order to influence and contend for participation in governance processes.
2 Theoretical Framework
The normative power theory developed from previous theories referring to Europe as a “civilian power”, which in turn was created in the context of Nye’s “soft power” theory. Manners discards the term “civilian” because it degraded into “civilianizing” and “civilizing” with its attendant implication. By normative, Manners means “to affirm things as they should be, to judge or direct human conduct” (2007: 117-8). Manners, stating his theory in a positive form, is optimistic about Europe’s role in the world, saying “when I say that the EU has normative power in world politics, I mean that its existence, its commitments, and its actions all, in some way, challenge the status quo of world politics.” He is saying that the EU both is normative and should be normative. The way to go about deciding the content of the norms is through open debate, reflective depth, and discussions about ethical policy. (2007: 118)
Sjursen notes that different authors present this theory in different ways, yet they all contain three main components. First, it is claimed that the EU is a unique kind of power in the international arena, and secondly, this uniqueness derives from its diffusion of norms. Finally, the EU’s normative character comes from its nature as a different kind of institution, with Manners (2002:242) cited as saying, “the central component of normative power Europe is that the EU exists as being different to pre-existing political forms, and that this particular difference pre-disposes it to act in a normative way.” (Sjursen, 2006: 236) Another attribute often cited to explain the EU’s normative power is its reliance on “soft power” means, to the exclusion of military force, in its external relations. (Diez, 2005: 613)
The normative power theory has been used by several scholars to evaluate issues such as for example EU environmental policy or the role of the EU in global governance. (Manners, 2007: 18-19) Other academics have attempted to develop the characteristics of a normative EU, as being self binding, as being derived from “rights based normative justifications”, that it should be reflexive, and inclusive. (Ibid: 119-121)
Some scholars have supported the NPE theory, at least in qualified terms. Analyzing the EU in the context of the Kyoto Protocol and the ICC, Scheipers and Sicurelli contend that the EU’s normative identity is forming, and that its limited reflexivity does not undermine it as a normative power. They conclude by saying that by representing itself as bound by international law, the EU gains credibility in its projections in external relations. (2007: 453-4)
Not surprisingly given its significance in the debate on Europe in the last decade, as well as its assertiveness in making such a claim about the EU, this theory has been the subject of a great deal of criticism on various grounds. Nicolaidis and Howse, criticize the concept of the EU as a model for the rest of the world on the grounds that there is a distinction between the EU as it really is and how it projects itself in external relations. (2002: 767) “Ultimately the EU would need to model itself on the utopia that it seeks to project onto the rest of the world.” (Ibid: 788)
Diez also criticizes this theory on several grounds. He argues that the normative power description of the EU is not distinct from the previous civilian power model. This undermines the distinctiveness of the EU as a normative power, and argues that the US, in a different way, also acts as a civilian power. He further argues that in any construction of identity, the identity is constructed against an “other”, providing four representations of the other. Two in particular could be applied to the case of the EU in Cambodia- “representation of the other as violating universal principles”, and “representation of the other as inferior”. (2005: 628) Diez, like others, also calls for more reflexivity in the construction of the NPE identity, saying, “the discourse constructing NPE should be analyzed more systematically, particularly regarding forms of othering…” (Ibid: 636)
Youngs discusses the NPE theory, relevantly, in the context of the EU’s promotion of human rights. He introduces the argument that the discussion of the EU’s identity construction, an ideational undertaking, neglects the role of political instrumentalism, (2004: 415) and cites several cases in which the EU’s normative language on human rights cloaks its political interest (Ibid: 423-4). Youngs concludes by noting that while ideational influences have grown in importance, they are still shaped by instrumentalist factors, and these two co-exist and set parameters for each other.(Ibid: 431)
The NPE theory has also been criticized from a realist perspective. Hyde- Price argues that one of its main weaknesses is in ignoring the link between “hard” and “soft” power as the EU’s ability to act as a civilian power has historically rested on the military power of the US. (2004: 5) He also asserts that the EU’s normative power comes from “the very material power of economic carrots and sticks”.(Ibid: 8) Similarly, Kagan, (cited in Diez, 2005: 620) claims that the EU is a civilian power more by necessity than by choice, as it lacks the military capability to assert its influence more forcefully.
Manners has responded to many of these critiques and welcomed some of the suggestions, such as Diez’s call for greater reflexivity. He writes, “we should reflect on who and what the “self” are in Diez’s discussions of othering and self- reflexivity…there is no fixed, essential, final self in the process of European integration”. (2006: 180)
As the theory of normative power is broad and could be applied to both the EU’s internal and external relations, a more specific description of the EU as a normative power needs to be constructed in the case of civil and political rights in Cambodia. This construction is informed by the critical literature on aid relationships and conditionality.
2.1 Critical Writing on Human Rights Aid Conditionality
There is a substantial literature evaluating the exercise of aid conditionality for reasons related to human rights and democracy, which range from cautious to quite critical. The issues raised will inform the constructs of the EU as a normative power in Cambodia in relation to positive and negative conditionality.
One of the main critiques of conditionality is that in the absence of clear criteria, determinations to enforce conditionality run the risk of being subjective and inconsistent. Smith notes that, “apart from gross violations of human rights or clear reversals in the democratization process, judging whether a country has met the criteria is bound to be highly subjective.” (Smith, 1997: 8)
Another of the main arguments made against human rights conditionality is that it undermines the sovereignty of recipient governments (Lumina, 2004: 331). Doornbos, for example, argues that both conditionality and the new instrument of selectivity through the rhetoric of good governance is “a handle for donor intervention” (2001: 102-4, 106), while this argument is refuted to a degree by Nherere, who argues that countries voluntarily take on aid agreements and conditions (1995: 301-302).
A related argument is that human rights aid conditionality amounts to neo- colonialism, or a modern version of the “civilizing mission”. Leino writes that “for Mutua, the essential problem with the current human rights corpus is that it continues the ‘Eurocentric colonial project’ which casts states in superior and subordinate positions.” (2005: 364). With regards to “democratic conditionality”, Tomasevski argues that democracy and human rights are used as pleasant sounding rhetoric, in which human rights are reduced to democracy, which is further deflated to mean multi-party elections. She refers to this emphasis on multi party elections without concern for real qualitative democracy as “electoralism”. (1993: 13-14)
There is no universal agreement among all the authors about the points concerned. Nherere, for example, while critical of conditionality in general, refutes the argument of the invasion of state sovereignty. Lumina argues that political rights conditionality is often not in the self- interest of the governments targeted, and therefore this conditionality is unwanted. Yet this does not mean that people, or at least sub groups in that society do not wish to exercise those rights. Lumina notes that “political conditionality has met with resistance or criticism mainly from incumbent governments of the recipient countries due to the fact that they have been the principle beneficiaries of the status quo.”(2004: 332)
This reflects a conflict between the concept of the universality of human rights, which holds that human rights are universally held values reflected across cultures, and cultural relativism, which suggests that human rights are not universal, but rather reflect the cultural norms of one group of cultures (usually Western cultures). Applied in the context of human rights aid conditionality, the cultural relativist position implies that developed states have no right to impose human rights or the values underlying them on other states and their cultures. Nherere quotes Gloppen and Rakner, who write that “unless human rights can be justified as universally valid norms, it cannot be acceptable to make human rights respect a condition for development aid.” (1995, 296)
Arts, however, notes that a third position, which she identifies as the mitigated universalist position, acts as a compromise between universalism and relativism. This position, while agreeing that a group of universal human rights norms exists, notes that the implementation of such rights in a specific context must take into account the unique circumstances, cultural attributes and norms of that setting. (2000: 33) The mitigated universalist position could be construed as indicating that human rights conditionality, or at least human rights dialogue, has a tenable theoretical basis, if applied conscientiously.
These critiques and debates on the role of human rights considerations in aid relationships between donor countries, specifically the EU, and developing countries informs the elucidation of constructs of the EU as a Normative Power which follow.
2.2 Constructs of the EU as a Normative Power
In order to situate the following study within this theory, several questions must be addressed. First, touching on the universality of human rights, and critical literature on donor intervention, should the EU act as a normative power in the case of civil and political rights in Cambodia? From a mitigated universalist perspective on human rights, human rights are universal, but must be adapted to the context. (Parekh, 2005: 286) Yet in the case of Cambodia, in the context of civil and political rights, the Cambodian government has not offered any culturally specific forms of governance which would improve people’s ability to participate in decision making. The impact of traditions of hierarchy and political patronage are generally regarded as being negative influences on the realization of people’s rights. (for example, Un, 2006: 226-227) Thus, international norms of civil and political rights and democratic participation should be promoted, since the government has offered little in alternative. A higher standard of democracy and civil and political rights, as reinforced by international law, would positively impact Cambodians in the quest to realize economic, social, and livelihood rights.
A second question concerns whether it is plausible, or likely that the EU could act as a normative power, given the potential for instrumental factors which would inhibit the normative nature of the EU’s actions. Similarly to Youngs, this essay will take the perspective that it is possible for the EU donors to act as a normative power, but that material interests can limit the willingness of these donors to act. When the donors have limited interest in a country, or when normative factors are enshrined in policy, normative ideals can have greater influence in the EU’s relations with recipient governments. In other cases, the existence of material or political interests may set up conflicts between those elites who believe in the assertion of, for example, human rights norms, and those who prefer to prioritize material factors.
In order to evaluate the EU donors in terms of whether they are acting as a normative power, possible constructs of what EU donors as a normative power in Cambodia would do to affect the realization of CPR will now be clarified. In all these constructs the main questions concern whether the EU donors should exercise conditionality or pressure, or political dialogue for human rights, and whether they should fund initiatives related to human rights. While these constructions reflect variations of the two main variables in my paper, other factors may also be included in such a construction. The table below charts five possible constructions of the EU as a Normative Power in relation to civil and political rights in Cambodia, which are formulated based on the critical literature and interviewee’s perspectives.
Table 1. Constructs of NPE in Cambodian HR Context
Aid only for development
Non- intervention/state sovereignty (Leino, 2005)
No, very limited political dialogue
Similar to position of Japan if LJR funding counted (Int. 34)
Balance of rights and sovereignty
Yes, more directed towards CPR
More persuasive political dialogue, conditionality in extreme cases
Promote government ownership of HR
Yes, more directed towards CPR
Yes, if there is government ownership of conditions (Int. 10)
Modalities of conditionality differ
Government ownership balanced with citizen interest
Yes, funding even for projects opposing the government
Yes, with or without government acceptance
Close to former US position in Cambodia
For the sake of this paper, the author will adopt a stance which is perhaps a strong version of the third position. The EU donors acting as representatives of the EU as a normative power would provide funding for projects and programs related to political rights, funding which should be in a significant amount. Funding for human rights in general would be more directly related to promoting political rights, rather than through peripheral activities. The EU donors would maintain regular dialogue with the Cambodian government on human rights issues, advocating persuasively on their behalf, and seek to generate acceptance and ownership of political rights by the Cambodian ruling elite. The EU donors would not, however, exercise conditionality, except in extreme cases, as this would decrease government ownership of the principles of CPR, and result in a loss of possible improvements through support for LJR.
3 Human Rights Framework
This paper will use the international human rights instruments, particularly the International Covenant on Civil and Political Rights (ICCPR), to compare the practice of the government to its obligations under treaty. Cambodia’s ratification of the ICCPR, without reservations, entered into force on 26 August, 1992. Thus Cambodia is legally bound by international law to observe the rights articulated in the ICCPR. Cambodia also signed the 1st Optional Protocol to the ICCPR in September, 2004, but has not ratified it yet. (OHCHR, 2007) It has not submitted a report to the Human Rights Committee since 1999, (OHCHR/Cambodia, 2007) despite being due in both 2002 and 2006. The full texts of the relevant articles of the ICCPR, discussed below, are contained in Annex II.
In Article 18 the ICCPR prescribes that all Cambodian citizens are guaranteed freedom to hold their own opinion according to their conscience. Article 19 guarantees the right to freedom of expression, which includes the right to receive and transmit information and ideas, by voice or in print, in any form of media. This clearly includes freedom of speech and the press, and implies also the right to information, as in “seek, [and] receive… information and ideas”.
Article 21 of the ICCPR, “the right of peaceful assembly”, prescribes that Cambodian citizens, including civil society, labour, and community groups all have the right to assemble peacefully in public spaces in exercise of their rights in a democratic society with democratic space. Article 22, the right to freedom of association, guarantees to Cambodian citizens the right to form groups and associations outside the government, as well as labour unions which can act as independent political vehicles to advocate for their interests. It also implies the right to form political parties without restriction.
Article 25, participation in government, mandates that Cambodian citizens have the right to participate in public affairs, to vote in genuine elections which ensure “the free expression of the will of the electors.” This article directly refers to many basic aspects of the construct of democracy, including the right to vote, to participate directly in public affairs and to run for office. The article states that in the case of representative democracy, that representatives should be freely chosen, which implies either a multi- party or one party system in which citizens actually have a choice between different policy formulations.
Article 6 of the ICCPR, the right to life, is relevant to the study in the case of political or allegedly political killings. Article 9 of the ICCPR, the right to liberty and security of person, mandates that the Cambodian government should not arbitrarily arrest or detain its citizens, including in political situations, without due process. This pertains especially to politicians and civil society members arrested without warrants, while exercising other political rights, such as freedom of expression.
Article 14, the right to a fair trial, is pivotal in the case of Cambodia because of the condition of the legal system and the way that it has been used as a political instrument. This right will be considered in this study specifically in cases where charges have been made for political reasons, and the condition of the legal system leaves the accused unsure of whether they will receive a fair trial.
Article 26, Equality before the Law, and non-discrimination, is applied in the context of imbalances in the judicial system, in which those who are less powerful or troublesome to the government receive differential treatment in the legal system.
These rights, to which the Cambodian state is the duty bearer, are the standard applied to the context of Cambodia from 2003 to present. The analysis will show that a pattern of violations occurs among and between these rights, mutually affecting each other. Particularly, Article 21 and Article 14 are regularly violated, with government conduct in the media and elections also contrary to Article 19 and 25.
Chapter no. 3
The Civil and Political Rights Situation in Cambodia
This chapter will reveal that the Cambodian government has regularly violated some civil and political rights since 2003 in a way that has diminished democratic space and the potential for meaningful checks on the power of the executive both from within the government and from civil society. A series of interrelated constraints on a variety of CPR as well as limits on fundamental social structures which act as constraints on the executive branch of the government, combine to limit the ability of the Cambodian citizenry and civil society to participate in the governance of the country. The declining political and public space and absence of rule of law, with its limitations on the ability of people to participate in governance, or even to influence it, has had dire consequences in key governance areas such as corruption, the legal system, land tenure, and natural resources. Corruption, for example, is endemic and present at all levels of the government bureaucracy, and has economic impact on the poor in a country where 35% of the people live on 45 cents or less per day (LICADHO, 2006a: 23), yet the people’s ability to influence the government to act on this problem is marginal.
A description of the characteristics of CPR violations will be presented, followed by a narrative of events to show how the government has undermined democracy and CPR in a way that is systematic, designed to maintain the party and prime minister’s grip on power.
1 Civil and Political Rights in Cambodia: Characteristics
The root of the Cambodian state’s failure to enact true democracy could be summarily described as over-dominance of the executive branch of government, in which a specific individual, and those in a powerful and well organized party apparatus, makes the most significant decisions. Even legislation passed by the National Assembly is left simple, to be expanded and implemented by the Prime Minister through sub-decree. (Mosolf; Interview) The interference of the executive in the judicial system, especially in important cases, can be seen clearly in a series of cases. (Interview) The Supreme Council of the Magistracy, which is tasked with selecting, disciplining, and removing judges, is stacked with ruling party figures who approve CPP nominated judges. The Constitutional Council, charged with guaranteeing the integrity of the Constitution, and meant to be comprised of impartial, apolitical figures, is stacked with 6 CPP members (out of a total 9). (LICADHO, 2006a: 18) Corruption, connections, and influence are more significant factors in many legal cases than evidence, and those with power and money usually win out in the Cambodia legal system. (DANIDA, 2005: 17)
The use of the legal system has emerged as a new strategy, not only of the Prime Minister himself, but also of other rich and powerful people in society. (Ghai, 2006a: paragraph 71) For instance, in a recent land dispute in Rattanakiri, the wife of a government minister not only filed a lawsuit against the indigenous minority people she sought to dispossess, but also threatened litigation against the NGO lawyers that were representing the dispossessed. (Interview) In 2004, Ki Tech, lost the elections in the Cambodian Bar Association to a civil society opponent. (Ghai, 2007a, paragraph 38) Ki Tech filed charges in court to nullify the results, eventually winning control over the Bar. In the wake of this incident, Ki Tech issued instructions to lawyers of the Bar that they could not work for NGOs (mostly consisting of public defenders.) (Interview) This and other incidents have created concern over the independence of the Bar (Ghai, 2007a: 38) This situation is compounded by a limited legal framework, as the country still relies primarily on the simple UNTAC code, written during the UNTAC era, allowing more space for interference and partial interpretation. (Interview). The CG has, since 2004 attempted to pressure the government to pass eight key laws, many of which pertain to the basic function of the legal system. (Ghai, 2006, paragraph 27) LICADHO notes that the international community had actually been calling for these laws since 1994, and that the delay in their passage is “a deliberate policy to maintain the patchwork of legislation and vague procedures that make it easy for the law to be manipulated.” (2006a: 19) The failure to pass these laws has left Cambodians with little access to information, no meaningful way to challenge laws as unconstitutional, or to challenge corruption .
Since the anti-Thai riots of January 2003 the government has used that incident as an excuse to ban non-violent demonstrations by requiring them to get permits, which are frequently, and for some periods always, refused. LICADHO counted 39 instances of the authorities violently dispersing demonstrations in 2005. (FIDH, 2007) Ironically, when the government reneged and allowed the 2005 International Human Rights Day assembly, it resulted in the arrest of 3 major civil society members. (USAID, 2006: 1) The government cites a Pre-UNTAC law on demonstrations which is against the Constitution, Art. 41, which guarantees freedom of assembly, except in cases which violate public law and order and national security. Not only is this ban and restriction on the right to freedom of assembly unconstitutional, it also broadly contravenes article 21 of the ICCPR. This article states that limitation of this right is only allowed in conformity with the law, for reasons of “national security, or public safety, public order” and to protect health and other’s rights. Clearly, in the vast majority of cases of restriction of the right to assembly in Cambodia, the conditions are not sufficient to meet these criteria.
In terms of the right to freedom of expression, the authorities tolerate opposition papers, yet it is widely recognized that newspaper journalists practice self-censorship due to the threat of defamation lawsuits. The lack of freedom of information makes it difficult for journalists to investigate important matters, and without information, cannot make supported statements that would protect them from charges of defamation. (Interview) Radio, which is far more important as a news source among Cambodians, is more restricted than the print media through the restriction of licenses. While the critical point of view of Voice of Democracy is tolerated, the opposition SRP has consistently been denied a permit to establish its own radio station. (Mosolf; Freedom House, 2007: 6) In television, the government controls many stations, or they are owned by businessmen linked to the government. As a result the news is full of ritualized conferences and ceremonies, notably ignoring newsworthy land and resource conflicts. (Interview) Executive control of the media was seen immediately preceding the 2003 elections, when all of the television stations synchronously played government created tapes telling its version of the 1997 military “coup”. (Mosolf)
The international NGO Global Witness has also run afoul of the Prime Minister. In 2005 and 2007, the government banned two of the reports of Global Witness, previously the country’s Independent Forest Monitor. After Hun Sen also barred its international staff from entering the country, leaving its local staff vulnerable to threats, GW closed its Phnom Penh office. (LICADHO, 2006a: 5)
Cambodian citizens as well are commonly described as imbued with fear of authority, inhibiting them in their relations with the authorities. (Interview) The recent arrests of major civil society members, the mysterious murder of 3 union activists, as well as the legal harassment of opposition politicians has left civil society members far more cautious in their statements (Interview) There is an increasingly anti-NGO sentiment in the media and in the statements of public leaders, including accusing them of being supported by foreigners, as if they do not represent indigenous concerns. (Interview) The government has also proposed an NGO registration law, which LICADHO states contains several provisions which are contrary to the ICCPR. LICADHO cites three Asian countries which have used such laws to restrict critical civil society voices. (LICADHO, 2006b: 1)
Hun Sen’s language has also become increasingly aggressive towards the international community and international NGOs, in what appears to be an attempt to silence critical international voices as well. In March 2006, Hun Sen attacked the Special Representative for the Secretary General for Human Rights, Yash Ghai, by saying he would no longer cooperate with Ghai, advising the Secretary General to dismiss him, and commenting that UN human rights staff are “long term tourists”. (AHRC, 30 March 2007). In March 2007 the government threatened to expel the Open Society Justice Initiative, one of the monitors of the KR Tribunal, in relation to a scandal in the KRT. (CHRAC, 29 March 2007) In a speech in January 2006, in which he revoked his promise to drop charges against the civil society activists, Hun Sen said “Any foreigners, if you are not an animal, please talk about the law. Don’t talk about politics…Please choose your option, some critics are animals.” (German Press Agency, 30 January 2006)
Widespread land rights violations are among the most serious human rights concerns in Cambodia, (FIDH, 2007: 2) and civil and political rights are violated when people organize to protect their property. (HRW, 2006) A similar dynamic exists in relation to large scale land concessions and forced evictions in Phnom Penh. The inability of these citizens to exercise their civil and political rights and receive access to a fair trial often have dire consequences for their livelihoods, contributing to a growing landless class, or “living ghosts” in colloquial Khmer.(LICADHO, 2006a: 3-5) As an example of CPR violations in these conflicts, during a standoff over land in a conflict in Banteay Meanchey in March, 2005, the police fired into a crowd of protesters, killing five and injuring 40. (LICADHO, 2006a: 5) In June of 2005, provincial police dispersed 650 indigenous people protesting against a land concession violating their communal lands in Mondolkiri (Ibid: 6) In the major conflict over the Pheapimex concession in Pursat province, a grenade was thrown into a group of peaceful protesters. The perpetrator was never found, and community activists themselves were even accused of throwing the grenade. (Ibid: 4) In Kampong Speu, the government requisitioned a naturally occurring site of a hot spring to develop a resort, displacing the Suy ethnic minority inhabitants. According to Yash Ghai, “the community and its representatives have come under continuing and increasing pressure and threat” from commune councillors, police and district and provincial officials. (2006a: paragraph 38). These are just a few instances of violations of Article 21 and 22 of the ICCPR, on freedom of assembly and association, and Article 9, security of person, in connection to land or property conflicts. Given that the authorities are often in cooperation with the wealthy or powerful who claim the land, local people are left with little recourse except to advocate in their own self interest, which is met with arrest, intimidation or violence.
If the government’s restriction of civil and political rights and proper operation of the judicial system is deliberate, it is motivated out of the material interest of itself and its supporters. Members of the government, large businesses, and well connected people benefit from a system which prevents citizens from challenging them in court, publicizing incidents of corruption which enrich politicians, or challenging the ruling party’s power through the political process. The pattern of judicial failure, reducing democratic space to challenge the ruling party, and restriction of public dialogue serves to allow this elite class to plunder and grab the nation’s resources with impunity. The CPP has started to form an elite sub-class through a wide network of inter- marriage among high ranking party families. (Phnom Penh Post, 23 Feb-8 Mar, 2007) Ghai notes that “a wealthy and powerful social class has emerged on the back of the state- through the exploitation of the people and the country’s resources, relying on access to, and accumulation through, the apparatus of the state.” (2007b: 5) He further comments that, “I have come to believe that these policies are integral to the political and economic system through which the government rules. The government manipulates the democratic process, undermines the legitimate political opposition and uses the state for the accumulation of private wealth” (2006b) This analysis is the most plausible explanation for the pattern of dysfunction and violation which are seen in Cambodia, and suggests that the situation will be difficult to improve, since entrenched material interests are at the problem’s root.
As will be noted in the chronology below, the government has undermined the other two main political parties in the country and marginalized them from meaningful influence in the governance of the country. This has been accomplished through constitutional changes, spurious charges enforced by arrest, and removal of parliamentary immunity, among others. Many interviewees cited a new, more sophisticated strategy from the government which uses the legal system, a pattern of restrictions on fundamental freedoms, bold Machiavellian power grabs, and fear to slant the playing field in its favour.
2 Narrative of Human Rights Abuses and Declining Political Space
Civil and political rights and their realization have always been contested in Cambodia, at least in part because of the resistance of the ruling group to accept their full realization. Coming from the extreme Khmer Rouge regime to the Socialist single party rule in the 1980s, Cambodia had little experience with democracy outside of limited elections under Prince Sihanouk. (Chandler, 1991) In the early part of the post Soviet era, the UN sent one of its first peacekeeping forces which were to implement multi- party elections, administration, refugee return and a human rights component. (Richmond & Franks, 2007: 28) This was the result of the Paris Peace Accords which negotiated a settlement between the Vietnam supported government, the Khmer Rouge and royalist and democratic factions. (Kiernan, 2007: xiv) Immediately before and especially after these UN sponsored elections, non- governmental organizations, previously eschewed under the one party system, began to be established, providing the possibility for a civil society outside of the government to exist. Numerous political parties were formed and contested the 1993 elections. (Richmond and Franks, 2007: 31,33)
The royalist party FUNCINPEC legitimately won the 1993 elections, but the incumbent party (the successor to the state socialist regime of the 80s) headed by the Prime Minister Hun Sen, challenged the results. As a result, a power sharing agreement was reached, in which there would be two Co-Prime Ministers, the representative of the victorious FUNCINPEC and incumbent CPP. (Myers, 2006: 43) In the resulting power sharing deal, little power was actually transferred to FUNCINPEC, as the ruling party remained in control of a vast provincial, district and commune administrative and governmental system which remained filled with their party loyalists. As a result the winners of the election were essentially marginalized from rule. (Roberts, 2001)
Between 1993 and 1997, Khmer Rouge factions were defecting to both sides, leading to build up of tensions between Hun Sen and Ranariddh, President of FUNCINPEC. (Myers, 2006: 43) In 1995, Sam Rainsy, former FUNCINPEC minister and an outspoken critic of corruption in government, broke away from FUNCINPEC to form the Khmer Nation Party. In March 1997, a group of men threw grenades into a peaceful unarmed group of members of the Khmer Nation Party demonstrating against corruption, killing 16, while Rainsy narrowly missed death. The perpetrators were never found, but evidence points to the involvement of the Prime Minister’s bodyguards in protecting the attackers. (HRW, 29 March 2007) In July, 1997, a military conflict erupted between the CPP and FUNCINPEC, which resulted in the victory of the CPP’s military force, the removal of FUNCINPEC from the government, and the flight of many of its members overseas. (Adams, 2007)
Amidst this turmoil, the elections of July 1998 went ahead, despite real questions about whether the elections could be fair with many of the leading politicians of FUNCINPEC and the newly renamed Sam Rainsy Party returning from overseas just months before the election. As was to become a pattern in Cambodian elections, they were flawed by violence, intimidation, vote- buying and unequal access to the media. (Collacott, 1998) Perhaps not surprising given the political context and electoral flaws, the CPP won the election, with FUNCINPEC second, and the SRP a close third. Electoral irregularities triggered SRP and FUNCINPEC to stage demonstrations- the closest ever to a non violent people power regime change in Cambodia. Eventually, however, the government suppressed the demonstrations, and FUNCINPEC conceded to form a coalition government with the CPP. (Hughes, 2007)
The period of 1998-2002 is perceived by at least some to have been a period of relative stability and respect for civil and political rights. (Un & Ledgerwood, 2002; 2003) The ruling party won the local commune level elections which were sponsored by the international community to promote local level democracy, but these elections failed to alter the power balance significantly due to the CPP’s control of the vast majority of commune chiefs. (Ibid, 2003)
2.1 The Anti- Thai Riots and their Aftermath
In late 2002 and early 2003, a rumour that a famous Thai actress had claimed that Thailand should reclaim Angkor Wat, fuelled by Hun Sen in a speech, triggered a youth rampage that left the Thai Embassy and businesses looted and burned, with all Thai nationals evacuated to Bangkok in the prospect of danger to their lives. (ADHOC, 2003) In the aftermath of these riots, as mentioned before, the Prime Minister reacted by ordering a freeze on all public assemblies and demonstrations without explicit government permission, significantly limiting democratic space only six months before the 2003 NA elections. In the aftermath of this incident, in February, 2003, Om Radsady, an advisor to FUNCINPEC President Ranariddh, was murdered in a contract style killing that was never resolved. (NICFEC, 2003: 8)
The elections of July 2003 were judged by the international community, including the EU, as having been procedurally fair at least in terms of the day of elections. (EUEOM, 2003: 1) However, the overall environment of the elections remained in question. (Ibid: 4) Despite the CPP’s victory in the 2003 elections, it needed to form a coalition with either of the two main parties, FUNCINPEC or SRP. However, the two parties united around a series of demands and refused to form a government with the CPP. A year of political deadlock followed in which no government was formed, with a “caretaker” government composed of the pre-election regime continuing to operate. Eventually, when it became clear that Hun Sen would not budge, FUNCINPEC again started to negotiate with the CPP for a deal that would create duplicate ministries to award FUNCINPEC members. However, Hun Sen pushed through constitutional changes allowing for a package vote as he feared the loss of his bid for the Prime Ministership. (RFA, 8 July 2004) After both the King and the President of the National Assembly refused to sign the constitutional changes, Nhiek Bun Chhay, a major FUNCINPEC figure, signed them into law, allowing the new coalition government with Hun Sen as Prime Minster to be formed. (RFA, 13 July 2004)
During the deadlock in January, 2004, the leader of the main independent trade union was slain in another contract style killing in broad daylight on the streets of Phnom Penh, triggering 10 to 20,000 people to walk through the streets in his memory. (HRW, 24 January 2004) Member of the human rights community widely suspected that it was a political killing. (Mosolf) In any case, two suspects were arrested and charged with the killings, despite having strong alibis, and being widely regarded in the human rights community as scapegoats. After a judicial process marred by a wide range of flaws, the two suspects were sentenced to 20 years imprisonment. (HRW, 3 October 2006)
Following the formation of the new government the opposition party SRP was marginalized from participating in the NA committees by refusing to allocate them seats on the committees. (Ghai, 2006a: paragraph 43) Beginning in July 2004, an attack was launched first on the political opposition in the form of legal charges of forming a militant armed force against major SRP parliamentarian Cheam Channy. (HRW, 28 July 04) Later Sam Rainsy and Chea Poch were charged with defamation, and all three men were stripped of their immunity in a closed session of the NA. Sam Rainsy fled the country after this incident, while Cheam Channy was sentenced to seven years imprisonment. (HRW, 6 Feb, 2005; HRW, 9 Aug 05) Beginning in October, 2005, several civil society activists were arrested as cited in the introduction and the following case study. During this period, Hun Sen also threatened to abolish the Monarchy, despite it being enshrined in the Constitution. (Kyodo News, 17 Oct, 2005)
In 2006, further changes were made to the Constitution, without public discussion, changing the required majority to pass a law from 2/3 to 50% + 1. After the passage of this law, the CPP immediately began to purge FUNCINPEC Ministers and staff from the government. (LICADHO, 2006a: 9) Later in 2006, the National Assembly passed an Anti- Adultery Law, which was used a few months later to sue former FUNCINPEC President and Prime Minister Ranariddh. (Ghai, 2007b: 2) FUNCINPEC split into two parties and faired poorly at the Commune Council elections of 2007, with 8 and 5% of the vote. The CPP gained 61% of the vote while SRP gained 25%. National Assembly elections are scheduled for 2008. (COMFREL, 2007: 5)
3 Conduct of elections
While some significant improvements have been made in the conduct of elections in Cambodia, enduring issues, including the dominant political climate, remain. The trend which runs through all of them is the over-dominance of the state and executive branch over factors which significantly influence the political climate. While the mechanics of the elections have generally been good, and political killings have gradually declined, opposition activists still risk their lives through their activities. The ruling party influences the mass, mostly rural electorate through near complete vertical control of the state hierarchy, from the national level through to the commune and village levels. “A subtle form of coercion” is allegedly used by village chiefs, who are 98% CPP appointees, to persuade voters by threatening to hold material or administrative benefits. (Interview) Vote buying is widespread (EUEOM, 2003: 3), favouring the party with control of the largest amount of funds. Insiders in Cambodia assert that when corrupt deals are made, a certain percentage of the funds must go into party coffers, which can then be used for elections, (Mosolf) and illegal logging has also been cited as a source for funds for campaigning. (Bettinger, 2004; LeBillon, 2002: 567) Ranking government officials, nearly always from the CPP, also often take credit for donor funded development projects, which should remain non- partisan. (Interview) Access to the electronic media remains problematic, with “fair access” only provided by donor induced programs during the 15 day campaign period of the 2007 elections. Outside this period, TV broadcasts, both private and public, were overwhelmingly dominated by the government and CPP. (COMFREL, 2007: 53-4) While in 2007 the NEC was made proportional to party membership in the NA, the PECs and CECs are still dominated by ruling party figures, who sometimes showed partiality in their enforcement of election standards. (Ibid., 34-5) The Constitutional Council, charge with final determinations on election complaints and challenges, is as already noted, dominated by the CPP as well. Voters, who are hampered by administrative complexities and a requirement that migrants return to their home province to vote, have turned out in lower numbers, from 94% in 1998 to 68% in 2007. (Ibid: 9)
All of these occur contemporaneously with the harassment of opposition parties, which sent party officials from the SRP and FUNCINPEC spending extended periods abroad. This is not only a rights violation, but it is also humiliating and prevents them from properly organizing and addressing their constituents. Sam Rainsy is thought to have made a deal with Hun Sen in order to return to Cambodia after his conviction, which has reduced his party’s ability to challenge the government. (Interview) In this context of “government manipulation of the democratic process to undermine legitimate political opposition” (Ghai, 2006b), with overwhelming ruling party domination over the electronic media, the playing field is hardly level.
Chapter no. 4
The Donor Context and Evaluation of the EU donors
In this chapter, the model of the EU as a normative power as elaborated in Chapter 2 will be applied to the case at hand to assess whether the EU bodies, the delegations and EUMS are in fact acting as a normative power in the case of civil and political rights in Cambodia.
Following an evaluation of the centrality of civil and political rights in several commonly funded human rights projects, the role of EU donors in funding civil and political rights related activities will be discussed. Then, the diplomacy of these actors will examine to determine if they have maintained a viable human rights dialogue with the government.
1 The Donor Context
Most of the interviewees perceive that the donor leverage is now weaker because of the prospect of oil resources in Cambodia. (Interview) The donor community has contributed aid equivalent to about half of the Cambodian government’s revenues since the mid-nineties. However, if oil revenues are significant and the government gets access to it, the proportion provided by donors to the annual budget will diminish, reducing donor leverage with the government. Similarly, a rapid increase in the amount of aid provided to Cambodia by China, which is given with no strings attached, has reduced the donor’s leverage with the government. (Interview) Rapid economic growth averaging 11.4% from 2004 to 2006 (World Bank, 2007, cited in Menocal et al, 2007: 19), combined with significant investment, has contributed to this effect. Hun Sen has, on several occasions, referred to this situation and positively described China in comparison to the CG donors. (LICADHO, 2006a: 24) In this context, observing the trend in recent years of increased aid, despite continued calls for reductions to signal distaste for the lack of respect for human rights, it appears that aid commitments will continue to grow.
DANIDA, SIDA, AFD, GTZ, and DFID are the development cooperation branches of their respective governments, while ICCO, Oxfam NOVIB, Forum Syd, Diakonia, and DCA are INGOs which often act as intermediaries between the development cooperation offices and local partners. The Commission Delegation is the representative of the European Commission in Cambodia.
2 Supporting Human Rights through Funding
In this section the funding of each of six EUMS will be illuminated to show that some of the EU donors have acted in a way that reflects the EU as a normative power, while others have not. These activities have provided some limited support for civil and political rights and democracy, but would not be sufficient to characterize the EU as such a power.
Many of the projects funded by the EU donors are similar or repeated, so each activity will now be assessed as primary, medium, or peripheral, to CPR, so that this analysis need not be repeated in each instance.
DANIDA, SIDA and NOVIB provide core funding to local human rights NGOs and legal aid organizations in Cambodia. This funding can be said to have an impact on civil and political rights to the extent that their programs involve activities that lead to the realization of those rights. In many NGOs for example, the monitoring, educational, and advocacy functions all involve these rights in varying degrees. (LICADHO, 2007)
Legal Aid organizations such as the Cambodian Defender’s Project and Legal Aid of Cambodia provide free legal service to Cambodian clients since the government is unable to provide public defenders to its citizens. (Mosolf) Core funding for these organizations would enable them to provide assistance and conduct advocacy in cases with political rights components, such as arrests of community activists. Due to the fact that core funding for these organizations will partly support activities related to CPR, this will be considered a medium level activity.
Deconcentration and Decentralization
A great deal of funding is being channelled to activities related to commune level governance, in tandem with the commune elections of 2002 and 2007. Enthusiasts argue that decentralized governance enhances people’s rights by giving them a chance to participate in local governance decisions that affect their lives. (Interview) However, a key issue concerns whether the project empowers local citizens to represent themselves to the commune councillors, or whether the funding targets the councillors themselves. It cannot be assumed that training for commune councillors will necessarily enhance local participation. This type of project will be considered to have marginal effect on civil and political rights, while those initiatives which target self-representation among community members will be considered to have a medium effect.
Elections monitoring and Support
Since the whole conduct of elections underpins Article 25 of the ICCPR, and since campaigning for elections consists of exercise of freedom of speech and assembly, these two activities will be considered to be primarily related to civil and political rights.
Support to Government for Legal and Judicial Reform
The poor functioning of the legal and judicial system and its opportunistic misuse are some of the main reasons that Cambodian people cannot exercise their political rights. Reform of the legal and judicial system would have a significant impact on these rights, assuming that reform is really possible, or will be applied in cases involving political rights. This activity will be considered to have medium relevance to civil and political rights, whereas its actual efficacy as a donor strategy will be discussed in the assessment section.
Several donors have begun funding local justice initiatives, focusing on conflict resolution, for example, by monks. The impact of these projects is debatable, and their relevance to civil and political rights cannot be defined without addressing the debate. (Interview) Funding for these initiatives will be noted, however.
2.1 Specific donors
2.1.1 European Commission
The European Commission Delegation in Cambodia provides a large sum of development assistance, over €31 million in 2005, which was more than any EUMS, yet most of it is not for civil and political rights related activities (European Commission, 2006b). The Commission does not support LJR through activities with the government or budget support (Interview), however, they are providing €10.5 million for the D&D program. (European Commission, 2006?).
The Commission’s primary funding for human rights is through the EIDHR, of which some projects have direct impact on CPR. Others include CPR related rights as a major component, usually focusing on creating “demand” through raising awareness, and the inclusion of advocacy strategies for local people in decision making processes or in land/ natural resource conflicts. The table in annex III shows projects which were perceived to be related to civil and political rights, as funded in three one year tranches. A quick scan reveals that none of these projects are entirely for civil and political rights related activities except election support in 2003, although some, such as CCHR’s project for communities to defend their interest in land conflicts, probably contain a large component. As seen as a trend in other donor’s funding, a large amount of funding goes to legal aid and support to the commune level decentralization process.
Commission representatives emphasized that because the process is very transparent, organizations are left to create projects which contain civil and political rights at their own prerogative. The Commission reps themselves noted that some partners complain that it is inflexible, laden with paperwork, hampered by a bureaucratic procedure designed to make it more transparent, and requires considerable paperwork. (Interview)
An evaluation comparing projects by the delegations in Cambodia and the Philippines noted that Commission funding sometimes lacks coherence, continuing that, “the single most important intervention which would improve effectiveness and lead to greater impact would be the drawing up of delegation level human rights strategies”. (Alberman, 2007: 2) The current “call for proposals” method and funding cycle results in a fragmented human rights program. (Ibid: 28) Further, given that many projects now focus on creating demand for human rights through local level advocacy, both the Commission and the NGOs funded need to have a rapid respond plan in case human rights defenders are threatened. (Ibid: 4)
2.1.2 EU Member States
Sweden was commonly cited as being one of the main EU donors to human rights in Cambodia, and one with little in the way of economic interests in the country. SIDA provides 60% of its funding to the government, and 40% is channelled through Forum Syd and Diakonia to local NGOs. (Interview) In 2005, at least part of SIDA’s support through the government related to D & D. (SIDA, 2005) For Forum Syd, current funding figures reveal that COMFREL, the election monitor is receiving general funding, while CDP is conducting Legal Awareness with funding from them. Star Kampuchea was provided funds to conduct general advocacy, while other organizations such as FACT and the ICSO are funded for projects that consist of civil and political rights activities, such as the formation of fisheries networks, or organizing indigenous people. KYA was funded to promote democracy and human rights among youth. (Forum Syd, 2007)
While Diakonia did not provide exact funding figures, they are funding ADHOC, LICADHO, CSD, Khmer Ahimsa, GAD, the NGO Forum, and KKKHRDA.
SIDA also provides funding to the Cambodia office of OHCHR, which continues to conduct monitoring, advocacy, and provides support to the SRSG for human rights (currently Yash Ghai). (SIDA, 2005; Interview)
During the researcher’s stay in Cambodia, the new Swedish government, consisting of a center-right coalition, reduced the number of countries receiving aid from 70 to 33. Although it was almost cut, in the end Cambodia was one of only two countries in Asia that will continue to receive aid, with neighbouring Laos and Vietnam eliminated. (Interview; Gopa Worldwide Consultants, 2007) While Cambodia did continue to receive funding in the end, this incident reveals the fragility of the EUMS support to CPR activities. If Sweden had withdrawn its funding, the funding channel of the EU’s support to CPR would have been seriously weakened.
DANIDA’s Human Rights, Democratization and Good Governance program seeks to impact the human rights situation in Cambodia through support to government through the Council of LJR and support to Cambodian NGOs, characterized as the “supply side” and the “demand side” (DANIDA, 2006: 14). While Denmark previously funded only NGOs, a Danish government minister proposed support to the legal sector in 2005, which began to be implemented in 2007. (Interview)
DANIDA, within the LJR component of the government’s Rectangular Strategy, is funding the government- donor LJR Secretariat. Secondly, they are funding the establishment and implementation of the Model Courts project, for a projected total of $783,000, in an attempt to create examples of well functioning courts in the country. (DANIDA, 2006: 40-41)
Under the HRDGG program, DANIDA will also continue funding several key NGOs. ADHOC will receive $316,000 over two years to monitor and investigate human rights abuses. Buddhism for Development will receive $350,000 to provide alternative justice and conflict resolution mechanisms, of which one component will be raising awareness among citizens of their rights and duties (Ibid: 79-80). $300,000 will be provided over two years to CDP provide legal aid, especially in cases of domestic violence and land disputes, (Ibid: 81) while CSD will be provided with $267,000 over two years to “increase public awareness of corruption” and promote the “capacity of civil society to perform watchdog functions.” (Ibid: 83) Provincial Advocacy Networks, designed to promote people’s participation and civil society’s ability to advocate in natural resource conflict cases, will be implemented by Star Kampuchea, which will receive $67,000. (Ibid: 84)
In addition, DANIDA will provide 316,000 USD over two years to the ILO to provide “support to indigenous peoples in Cambodia”, which includes having the “capacity to represent and defend their concerns and rights” and “to organize themselves as legal entities with rights to land and resources”. (Ibid: 49-56) In the recent past, DANIDA also funded the INGO Pact to conduct anti- corruption advocacy, an example of directly funding the exercise of civil and political rights. (Interview)
DanChurchAid, which receives its funding directly from the Danish government, formerly promoted civil and political rights related activities under its Civil and Political Space program, but this was discontinued as part of a narrowing of its program. (Interview)
Despite DANIDA’s apparent focus on human rights in Cambodia, it was not without some criticism. A staffmember of an INGO commented that “you have to look beyond the money that’s going to democracy and human rights, to see what the Danes are really worried about. It is their interest to be part of the Budget Support Facility…their main interest is to be present here with support for the government in these sectors [private sector development].” (Interview)
GTZ, like DFID, only affects civil and political rights in Cambodia through its funding for the D&D Program. (Interview 19) DED provides minor funding to projects such as human rights training for commune councillors, and “Networking in Land conflicts”, and provides two advisers to the Cambodian NGOs CCHR and ADHOC. (Interview)
The Konrad Adenauer Foundation is involved in cross-cutting activities related to the political sphere in Cambodia, including work with the National Assembly and political parties in relation to their organization and function. They fund KID and Buddhism for Development to conduct grassroots justice initiatives, and helped to establish a journalist’s association, which can advocate for freedom of the press. The Neumann Foundation provides support to the opposition SRP, while the Friedrich Ebert foundation has provided some funding to the labour movement, and FUNCINPEC. (Interview)
The UK through DFID offers support to civil and political rights in Cambodia only through dialogue with the government and through peripherally related projects. The DFID office in Cambodia is currently practicing budget support, by funding the D & D Program, which Helen Appleton described as “underpinning the civil and political rights philosophy, the right to participate in democracy”. The project, enacted with SIDA and UNDP, provides $5,000 to $8,000 to each communes, which is used both for local development projects and salary support. Referring to participation at the local level the DFID representative stated that “all evidence shows that there is limited participation, but it is better than before”. (Interview) DFID does not directly fund any other civil and political rights related projects, leaving only the British Embassy funds as another source.
The UK is bound under its Human Rights Act not to violate the human rights of anyone through its aid program. As a result it evaluates the human rights performance of the government, and discusses this with the government in relation to targets reflecting three commitments of public finance, poverty reduction, and progress in human rights. The government has agreed to their benchmarks, which include the possibility of conditionality (Ibid).
France has only been involved in civil and political rights through its support for Legal and Judicial Reform through training of government staff “the creation of conditions conducive to the rule of law” through codification of legislation, for example. (European Commission, 2006b) France has been involved, along with Japan, in assisting the government in the drafting of the Civil and Criminal codes, along with their corresponding Procedural Codes. (DANIDA, 2006: 23) Support to local human rights NGOs has not been detectable, and no civil and political rights funding is contained in AFD’s program. (AFD, 2005)
The Netherlands discontinued aid to the government in 2004, due to an “assessment that bilateral aid was not well used”, based on good governance criteria and a need to limit focus countries. However, the small amount of funding channelled through NGOs is disproportionately used to promote democracy and human rights through ICCO and NOVIB. ICCO, for example, provides funding to LICADHO, CLEC, and LAC, (Interview) while NOVIB provides core funding to LAC and COMFREL. (Interview)
2.1.3 Multiple Donor Analysis
Many of the EUMS embassies provide small project based funding for human rights activities, including those related to elections and civil and political rights. LICADHO, for example, lists five EUMS embassies as donors in its website. (LICADHO, 2007) While it is outside the scope of this paper to cover these funding tranches, these activities should also be factored into considerations of whether the EU has acted as a normative power with respect to funding for the rights under study.
The European Commission and the EU member states have supported elections in Cambodia in the 1998 and 2003 national elections as well as the 2002 and 2007 Commune elections. While it was beyond the scope of this study to track individual funding channels of electoral support, these funds must be considered when assessing the EU’s role as a promoter of CPR in Cambodia. General funds for the implementation of the elections, which includes crucial technical assistance, are donated to a trust fund administered by UNDP. By being part of the process, the EU donors probably acted as a check on the government, which otherwise could have limited democracy to a greater degree. (Interview) Additional funding was also provided to civil society groups to conduct monitoring, voter education, and advocacy. The funding for these elections came from a wide variety of sources including the Commission, the bilateral aid agencies, as well as the donor embassies.
2.2 Overall Assessment of the EU and EUMS in Funding Activities
Some of the EU member states, notably Denmark and Sweden, are providing a significant amount of funding to civil and political rights activities in Cambodia. Some credit should be given to these countries for the activities which they have supported, which support indigenous forces in favour of human rights or their expression. The EU’s support of the electoral process has also been significant and is primarily related to civil and political rights, though the EU could be charged with supporting a flawed electoral system.
While the Commission provides a relatively large amount of funding for human rights through the EIDHR, only a portion of the funding goes towards directly supporting CPR. The lack of coherence among the projects risks having a limited effect in priority areas. This problem is reinforced by the absence of a country level human rights strategy. While the Commission would not be said to be projecting Europe as a Normative Power, it has made some effort to support these rights through EIDHR.
Although there seems to be a trend in German development cooperation emphasizing HR, the actual level of funding related to civil and political rights is either relatively small, or less directly involved with these rights. Many of the KAF activities related to civil and political rights, such as working with the parties and NA would have a slow gradual effect on expanding democratic space. German development policies on these rights reflect the gradualist, long term view that Youngs cites (2004: 422). France was often described as a strong supporter of the government, both due to its economic interests as well as its strategic interest to regain influence in a former colony, (Interview) which may be a reason why France does not seem to support CPR through funding. The UK provides almost all related funding through the Cambodian government for D & D, which is marginally related to these activities. These three donors have failed to act as a normative power as donors.
Thus, while some EUMS have been acting according to the projection of the EU as normative power, others have not. Considered as a whole, they can hardly be considered as constituting a normative power, since “normative” implies standing out or being exemplary.
2.2.1 Analysis of the Modalities of Aid
Funding levels are only one dimension of the support for rights, since differences exist not only in the amount of funding, but also in the content of the support. The way that the program is implemented, for example whether it includes capacity building and a long term relationship with the donor, or project based funding as in the EIDHR, also has consequences.
Several interviewees identified a trend in thinking in the donor community on human rights related to the recipient of aid, or the implementer. The role of HR NGOs, long the mainstay of donor HR support, was questioned, as they were seen as lacking a true constituency and serving to perpetuate vertical patronage systems. Several interviews indicate that a new strategy of supporting local networks of community activists advocating on land and natural resource issues has emerged, linking them with national level HR NGOs for protection. This strategy, however, raises several practical issues related to power relations and protection. If donors from the EU seek to remain at the forefront of efforts to promote these rights, they need to engage in a reflexive dialogue on the merits, defects, and challenges of implementing this strategy.
At least two EU donors have attempted to improve the civil and political rights situation through budget support, technical assistance, and assistance in drafting laws, among others to LJR. The unlikelihood of a fair trial and arbitrary interference in the judiciary are among the main reasons people fear to fully assert their rights to speech, to organize, and exercise other political rights. (LICADHO, 2006a: 12) It would be necessary to evaluate more closely the substance of these activities to determine whether a normative power should fund them. Reflexivity in the allocation process is necessary, as some could argue that until there is real political will to reform the judicial system, no amount of donor support will really make any difference. (Interview) Model courts, something which DANIDA funds, for example (Interview), were referred to as cosmetic improvements which skirt around the problem. Some within the donor community in Cambodia are now saying that the LJR benchmarks, which are intricately linked to the budget support for LJR, have quietly been dropped. (Interview) Some of the laws drafted with technical assistance have also been flawed. The Criminal Procedural Law, soon to be passed by the NA, extends pre-trial detention to 18 months, and allows the suspect to remain imprisoned even if they are acquitted and the prosecutor appeals. Suspects are not provided with a lawyer within the first 24 hours, when torture or forced confessions are most likely to occur. (Interview) On the other hand, this paper will later propose that the EU establish a more permanent and regular dialogue between the EU and the Cambodian government on HR issues. In this context, budget support for LJR could be positive as it engages government staff in LJR and allows the donors to work with the government on these reforms.
3 The EU as an agent in political dialogue
This section will review the EU’s efforts to influence respect for CPR through political dialogue. First, general cases of intervention over the past four years will be cited, followed by a particular case study of EU participation in an ongoing intervention for civil and political rights.
On 11 February, 2005, the Presidency of the EU expressed concern at the suspension of the immunity of the three SRP politicians, and noted that the situation “does not seem favourable… to the respect of the democratic opposition’s rights” (EU Council, 11 February 2005) On 19 August, the Presidency again commented on the conviction of Cheam Channy and Khom Piseth in a military court, saying that, “the credibility of the verdict has been seriously flawed by the military tribunal’s non- observance of a number of the defendant’s rights”. (EU Council, 19 August 2005) In response to the killing of union leader Hy Vuthy in 2007, the third such killing since January 2004, the European Parliament passed a resolution, calling on the Cambodian government to prosecute those responsible for his killing. (European Parliament, 2006) When Global Witness was expelled from the country, the UK Ambassador had a statement prepared at the Commission delegation level to the Ministry of Foreign Affairs. In another small instance, the Commission office supported a petition to the Ministry of Information after the threatened closure of an NGO supporting indigenous people. (Interview)
The former German Ambassador, Pius Fischer, was frequently cited by interviewees as one of the most vocal of the EUMS Ambassadors, but these statements often do not seem to have concerned civil and political rights issues. In one exception in a Phnom Penh Post interview, Fischer commented that, “A very alarming trend last year was the series of criminal defamation lawsuits…Fortunately this trend has been reversed.” (Phnom Penh Post, 20 October 2006) In January 2007, as the acting President of the EU in Cambodia, Fischer commented on the failure of the government to pass the Anti- Corruption Law, saying, “we strongly advocate the …early adoption of an anti- corruption law in Cambodia. We cannot debate any longer.” (Europe News, 23 January 2007). In response to the government’s ban of GW’s report in 2007 which argued that “Cambodia is run by a kleptocratic elite”, Fischer said that, “my recommendation would be to take such allegations seriously, to start an investigation.” (Star Kampuchea, 2007: 3)
Other than these instances and the one described below, no public statements were found by the Commission or its member states embassies on civil and political rights, although the researcher was frequently assured that these issues were raised in private. On the other hand, many of Commission’s implementing partners in Cambodia said they wish the EC delegation head would take a stronger position on HR issues. (Alberman, 2007: 3)
An effective response to civil and political rights concerns has also been hampered by the exclusion of certain countries from the monthly head of mission meeting. An informant revealed that the Presidency of the EU required that Sweden and Denmark send a representative from Bangkok, rather than delegating attendance to the Phnom Penh office. This had the effect of preventing Sweden and Denmark from participating, excluding two countries which arguably would make human rights concerns a higher priority. (Interview)
3.1 The Case of the 2005-06 arrest of civil society activists
As noted in the introduction, in at the end of 2005 and beginning of 2006, overlapping with the prosecution of several leading opposition party members, 5 civil society members were arrested, and others charged, in the context of the border treaty with Vietnam and the IHRD event in December 2005. The response to these events grew in light of the arrest of critical civil society member Kem Sokha, and the President of CLEC, Yeng Virak. It has been cited as a rare instance of a significant combined reaction from international community, INGOs and local civil society. (USAID, 2006: 1,13) Local civil society groups organized a wide range of events and statements in protest, which were often complemented by support from the diplomatic corps.
While an EU donor representative claims that EU was spearheading the movement for the activists’ release, (Interview) an unnamed interviewee from a major donor organization said that response was too late, as a result of poor coordination among the EUMS and Commission. Yet the EU and EUMS did take the following actions. On 11 November, 2005, the EU troika issued a demarche expressing its concerns over the charges against Mam Sonando and reminded the government of its concern over Cheam Channy’s imprisonment. (USAID, 2006: Annex E) On the day of the arrest of Kem Sokha, the UK Ambassador was present at his house to show moral support. (Kyodo, 31 Dec, 2005) On January 5th, 2006 the EU troika met with the Cambodian Minister of Foreign Affairs, in which the German Ambassador stated that he was concerned about the removal of parliamentary immunity and recent arrests of popular human rights activists. The German Ambassador, according to this statement, then praised the government for peacefully resolving the border issue with Vietnam. The French Ambassador allegedly then admitted that the words written on the IHRD banner were not acceptable. (Cambodian Ministry of Foreign Affairs, 2007) On 13 January, the Swedish justice Minister Thomas Bodstrom met with the Prime Minister and expressed the Swedish government’s concern about the arrests for freedom of expression, (VOA, 13 Jan 2006) which was cited by several interviewees as influencing Hun Sen to release the detainees. (Interview)
There was a “symbiosis between local activism and international activism” with the international community playing a role as an intermediary. Despite this, the lack of international consensus was also described as a weakness. (USAID, 2006: 17) The civil society activists were released in January 2006, and in February, 2006 a Royal pardon was granted to Sam Rainsy and Cheam Channy at request of Hun Sen. This incident and the release of the activists are perceived by some as a victory, but it was also flawed in its reinforcement of the rule by one person and party, rather than rule of law. (LICADHO, 2006a: 11) Apparently, however, the pressure was off after their release, as the international donors pledged $601 million dollars at the March 2006 CG meeting, an increase of $97 million over the previous meeting. (Gillison and Kimsong, 2007) While defamation was later decriminalized, civil charges on the basis of defamation remain, with disinformation still used to charge several journalists (Ghai, 2007a: paragraph 48).
The response of the EU troika, as well as the statements by the Council Presidency, represents a clear instance of diplomatic intervention. However, its activities in this instance are shadowed by a relative silence on civil and political rights issues outside this event. This incident reveals the threshold of the EU donors in what they are willing to tolerate before public statements will be made- a threshold which arguably should be lower.
3.2 EU as part of CG process
It is through the CG process that the international donors, including the EU donors, have attempted to influence the Cambodian government on a wide range of issues over the years, including economic policies, public management, forestry, land management, corruption and the judicial system, through its annual aid allocations (Springer, 2005; LICADHO, 2006a; Mosolf) Typically, these meetings have led to a series of promises by the Cambodian government, followed by aid commitments, and a failure of the government to live up to its promises. (Gillison and Kimsong, 2007) The clearest example of this stems from 2004, when benchmarks were introduced which included the passage of eight key laws. The government had only passed one of them by August, 2007. The CG, which first met in 1996 (Teramoto & Ezaki, 2002: 109), is perceived by some, especially those in the donor community, as having improved, due to the introduction of benchmarks and the development of the government reform strategy. Quarterly meetings linked to each of the 18 Technical Working Groups add a layer of institutionalization to efforts to negotiate with the government. (Interview) In the broader civil society, however, the CG meets with greater scepticism due to its repeated failure to attain meaningful reform from the government, most notably the anti- corruption law. (Interview)
The CG was, in 2007 for the first time, converted into a “government owned” institution called the Cambodia Development Cooperation Forum (CDCF) to reflect this. (CRDB, 2006) The donors in attendance include the Commission, EUMS, Japan, US, Canada, Australia, Korea, etc. (CDC, 2007) For the first time, in 2007, China symbolically participated in the process and pledged a large sum of money under the description of “social services”. (Interview) The EU and EUMS do not stand out as part of the CDCF because the Technical Working Groups (TWGs), consisting of various donors, each make a unified statement about the various sectors in advance of the main meeting. Since the meetings to prepare these statements are not public, it is impossible to know which actors are taking which position. (Interview)
The LJR TWG is the most relevant to civil and political rights. The human rights community tried to persuade the CG to include human rights benchmarks, such as submission of reports under human rights conventions, but these human rights related benchmarks were not included (Interview). This TWG involves coordination with the government on its LJR reform strategy, so it is closely linked to some of the funding described earlier. Not surprisingly given its failures to promote democracy and political rights, human rights activists have implicitly criticized the CG. Brad Adams notes that, “for more than a decade, the Cambodian government has taken donors for a ride by promising reforms but failing to deliver.” (HRW, 4 October 2006)
While it is hard to ignore the failures of the CG , one can only predict whether the cynics or optimists will be correct. The government has taken steps very recently to pass some of the eight laws donors have demanded, although in a flawed form. (Interview) A moderate prediction would be that the government will continue to delay, gradually passing legislation while benefiting from more aid. The Commission and EUMS can be credited with the failures and successes of the CG process, as they provide much of the force which legitimizes the process, and cooperate in its approach, mostly defined by WB and IMF orthodoxy. The majority of the interviewees felt that the leverage of donors in general to push for change with the Cambodian government has really declined, due to rapid economic growth, the discovery of offshore oil and gas in 2004, and the dramatic upsurge in aid from China, which is given with few conditions. A local human rights advocate commented that the window of opportunity for international donors to exert leverage on the government for the realization of democracy and CPR, has essentially passed. (Interview)
4 Conclusion and Analysis
Some of the individual donors, such as Sweden and Denmark, could be described as normative, since they have consistently supported the human rights sector during the time period examined. Yet the fragility of even this support was revealed by Sweden’s near withdrawal of aid in August, 2007. The EU’s funding for elections could also be seen as normative, except for its vulnerabilities to being described as electoralism. The donors of the EU deserve some credit, but they don’t necessarily stand out since many countries support human rights related initiatives. The US has also invested significantly in these rights in Cambodia, and is often juxtaposed against the EU in discussions. (Interview) This undermines the concept that the EU is normative, since it doesn’t stand out as a creator and promoter of norms and ideal standards.
It is difficult to make hard conclusions about the political dialogue channel, as much of it hinges on confidential meetings. However, those incidents which have been identified show that the known cases of diplomatic intervention for civil and political rights have been minimal. In the case of the civil society arrests, various EU actors made statements or interventions, but many other countries also made statements in this period.
Throughout the research, interviewees emphasized that the EU donors may conduct political dialogue with the government in private. The Cambodia Desk Officer for Cambodia at the Commission, stated that the EU regularly issues demarches to the government, but these are only sometimes made public, since the possibility of frank discussions would be lessened if the government knew discussions would be made public. Yet if the EU wants to be regarded as a normative power, it would need to show more evidence that it has regularly consulted with the government on civil and political rights concerns.
The EU seems to have been hindered by the difficulty of coordinating responses, and the Commission is inhibited by member states which feel that it shouldn’t be assertive on issues of political rights and democratic space. (Interview) The exclusion of local delegations’ representatives from the Head of Mission meetings also excludes important EUMS voices on human rights. Menocal et al, while emphasizing that coordination has improved among the EU donors, also noted with concern that the Cambodian delegation does not have sufficient autonomy or staff, due to its charge d’affaires status, to perform a coordinative role. (2007: 27,35) Alberman writes that the Cambodian delegation should be upgraded, in order to address a “perceived lack of EC visibility on human rights issues at the country level”. (2007: 3) In the conclusion, given this coordination difficulty, it will be asked whether the EU can even be considered an entity to be covered by the NPE theory.
Chapter no. 5
In conclusion, this study reveals that the EU and EUMS have not lived up to the title “Normative Power” in their actions to promote CPR in Cambodia in the last five years. The Cambodian government regularly violates CPR and limits democratic space in support of elite interests, having negative consequences for its citizens. In this context, a normative power would utilize positive conditionality through funding directed in significant quantity to support for CPR, and exercise vigorous HR dialogue with the government, attempting to bring about government ownership of CPR.
As revealed in the conclusion to Chapter 4, some of the EU donors have supported CPR activities through funding, while others have supported these rights only marginally. EU funding for elections is significant, but the electoral process and political climate are in question. The EU responded strongly to one series of CPR violations, but publicly known actions were rare outside this case. While claims of the need for discretion on these matters may have merit, the EU must stand out in the diplomatic arena on behalf of CPR if it is to be seen as a normative power. Thus, the EU donors’ actions through these two channels of influence on CPR in Cambodia have been insufficient to characterize their role as a “Normative Power”.
Since critiques should ultimately be constructive, recommendations on how the EU could bolster its support for CPR follow. To begin, more funding for civil and political rights is needed, and it needs to more directly target these politically sensitive rights. The Commission and EUMS need to develop a stronger and more coherent voice in defence of these rights, and show a greater will to respond. Since human rights indicators are not included in the CG process, the Commission and EUMS should establish a permanent diplomatic channel with the government to act as a forum for dialogue on human rights issues. A certain proportion of the meeting should be designated for civil and political rights, and at least the subject of the meetings should be made known for the public to examine. This dialogue mechanism could be designed along the positive lines prescribed in Article 8 of the Cotonou Agreement, and would demonstrate the EU’s normativity, as it would require political will and material inputs to be successful. (Arts, 2003: 23)
If the EU has not acted as a normative power in the case of CPR in Cambodia, the subsequent question becomes “why not?” Interestingly, part of the answer may lie in the “power” part, rather than the “normative” part. While it is often taken for granted that the donor country has vastly more power than the recipient, in the case at hand the EU’s power to influence the realization of the CPR appears to be limited. In the first instance, the Cambodian government has been relatively uncooperative, and the donors in general have failed to induce the wanted reforms. Many donors are actually resigned to rule of the CPP, since they are powerless to affect the political climate. As noted previously, the discovery of oil, the vast increase in unconditional aid from China, as well as rapid economic growth have undermined the importance of the donor’s aid.
Another commonly cited reason for the failure to exert diplomatic pressure attributed this to the personality, experience or length of time in Cambodia of the ambassador (Interviews). Ambassadors in Cambodia, described as a remote and small country, receive less direction from their superiors from the home government. (Interview) Recent arrivals in Cambodia may not be aware of the cyclical nature of political rights abuses in Cambodia, and perceive that the rights situation is good, as it appears from the surface. (DFID, 2007: 4)
It may also be that those working in the EU institutions also feel constrained by the theoretical debates about conditionality and human rights dialogue. While these debates are non- binding, they do construct and inhibit the space in which policies are made. In the end, as well, donors are expected to give money, and are not in a position to cut off aid to many countries, for a variety of reasons. Finally, as donors have limited funds, and the needs of countries like Cambodia are vast, funding for human rights must be balanced against other deserving causes.
Even when the donor has sufficient power to be normative, there are issues of the interest of some of the EU donors, which further detracts from their willingness to act. France in particular, was noted as an EUMS with material and strategic interest in Cambodia. Ideational factors do play a role, especially as the expression of individual agency, for example of agents in donor agencies who believe in the value of HR, or as institutionalized policies. However, material interest is probably also at play. While many felt that Cambodia is a small, unimportant country where economic or political interests are less significant, these interests are probably more present in Cambodia than many would like to recognize. The drive for stability in the region, growing economic significance, and the potential for Cambodia to emerge as another model of neo-liberal development are possible material interests in the country. Thus, similarly to Youngs’ argument, the ideational factor may be present in the EU’s human rights policies in the case of Cambodia, yet its actual timidity in practice may result from the encroachment of material interest onto the normative notions.
This paper, then, challenges the NPE theory via the empirical case of the EU and EUMS activities in support of CPR in Cambodia, as these have been insufficient to make the EU stand out as a creator of norms. The lack of coordination between the Commission and EUMS creates the question of whether the EU is unified enough to be given attributes as a unit. The EU’s record in Cambodia may be another case of the EU projecting itself as it would like to be rather than what it actually is. This paper could be seen as part of a reflexive process on the role of EU aid to CPR, yet could also be seen as an indicator that the theory should be abandoned. While identity formation as a normative power among EU actors may play a role in the EU’s activities, material interests are also probably present, which combined with declining leverage result in a less than normative performance. In conclusion, in order to act as a normative power as constructed in this paper, the EU donors would need to take a more active, coordinated approach to influencing the realization of CPR, including through increased, more targeted funding and a permanent human rights dialogue.
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Annex I. List of interviewees
1. Alberman, Daniel, human rights consultant, author of Comparative Evaluation of Cambodia and Philippines human rights programs
2. Appleton, Helen, DFID
3. Barber, Jason, Project Against Torture Consultant, LICADHO
4. Brazier, Roderick, Country Representative, The Asia Foundation
5. Chea, Mony, President, Free Trade Union of the Workers of the Kingdom of Cambodia (FTUWKC)
6. Coghlan, Matthew, Consultant (FORUM Asia and Oxfam)
7. Dina, Nay, Khmer Institute of Democracy
8. Ehnquist, Michael, Governance Consultant, DANIDA
9. Gnocchi, Thomas, Desk Officer for Cambodia, RELEX, European Commission
10. Goswami, Arjun, Country Director, ADB
11. Hayes, Michael, Publisher, Phnom Penh Post
12. Henke, Roger, Coordinator, Democratization and Peacebuilding Program, ICCO
13. Illes, Erik, SIDA Cambodia office
14. Kao, Dyna, Legal Aid of Cambodia
15. Kiet, Leng Hour and Brauer, Rabea, Delegation of the European Commission to Cambodia
16. MacLeod, Kurt, Pact Cambodia
17. Mannberg, Lars, Regional Director, Forum Syd
18. Meyer, Wolfgang, Konrad Adenauer Foundation
19. Mu, Sochua, Secretary General, Sam Rainsy Party
20. Network Community Activists, various provinces (group discussion)
21. Ou, Virak, Cambodian Center for Human Rights
22. Ouch, Sarak Chetha, Country Representative, Diakonia
23. Koul, Panha, COMFREL, Committee for Free and Fair Elections in Cambodia
24. Parnell, Terri, NGO development advisor, (interviewed as an individual)
25. Pen, Samitthy, Editor, Raksmei Kampuchea newspaper, President of Cambodian Journalist’s association
26. Petersen, Russell, Country Representative, American Friend’s Service Committee
27. Plaut, Ethan, Managing Editor, Cambodia Daily
28. Randolph, Paul, USAID
29. Selmeci, Andreas, Coordinator, Civil Peace Service, DED
30. Sok, Sam Oeun, Cambodian Defender’s Project
31. Taing, Sarada, Asian Human Rights Commission, formerly at CCHR
32. Thun, Saray, President, ADHOC
33. Trier Hoj, Carsten, Regional Representative, DCA
34. Turpin, James, UNCOHCHR
35. Ung, Ty, Chair of the Senate Human Rights Committee (CPP)
36. Uy, Chanthon, Khmer HIV/AIDS NGO Alliance
Annex II. Articles cited from the ICCPR
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI)
of 16 December 1966
entry into force 23 March 1976, in accordance with Article 49
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Annex III. Civil and Political Rights related EIDHR projects
Title of project
Amount of funding (euros)
Year of implementation
Election Observation Mission to Elections in Cambodia, 2003
Empowering Local Communities
CAMBODIAN HUMAN RIGHTS AND DEVELOPMENT ASSOCIATION
Indigenous Minority Rights Project
THE NGO FORUM ON CAMBODIA
Using Media to Raise Awareness and Participation in Decentralization
WOMEN S MEDIA CENTRE OF CAMBODIA ASSOCIATION
Support to the Khmer Rouge Tribunal (KRT) – Cambodian budget share of KRT operations
UNITED NATIONS DEVELOPMENT PROGRAMME
Promotion and Preservation of Human Rights in Rural Cambodia
THE KHMER INSTITUTE OF DEMOCRACY ASSOCIATION
Rights to Participation
COMMITTEE FOR FREE AND FAIR ELECTIONS IN CAMBODIA ASSOCIATION
Improving Local Governance Through Commune Council Partnership Strengthening.
NEUTRAL AND IMPARTIAL COMMITTEE FORFREE AND FAIR ELECTION IN CAMBODIAASSOCIATION
Cambodian Defender’s Project (CDP) Legal Aid and Rule of Law Advocacy Action
CAMBODIAN DEFENDERS PROJECT ASSOCIATION
Renforcement du rôle de l’avocat au Cambodge pour une justice plus équitable
AVOCATS SANS FRONTIERES FRANCE ASSOCIATION
Empowering disadvantaged urban and rural communities for the defence of their basic human rights in the course of land conflicts and development process.
CAMBODIAN CENTER FOR HUMAN RIGHTS
Capacity Building for the Rights of Indigenous Peoples in Cambodia
INDIGENOUS COMMUNITY SUPPORT ORGANISATION ASSOCIATION