Critique of Diplomatic Note Regulating International Marriage

By Chan Sophal

On 7 March 2011, a day before the widely celebrated International Women’s Day, the Ministry of Foreign Affairs and International Cooperation (MFA for short) issued a Diplomatic Note, which stated that “…..in order to avoid undesirable consequences of human trafficking, the Royal Government of Cambodia has decided that foreign men wishing to marry Cambodian women must be under 50 years of age and have a monthly income of at least US$2,500 to be considered eligible….”

This Note means foreign men have to satisfy both conditions, (i) being under 50 years of age, and (ii) earning at least US$2,500 per month, in order to be eligible. What happens to an expat working in Cambodia falling in love with a Cambodian woman and wanting to marry her? If the man has a good job, say earning US$5,000 a month but is 50 years old, he is not eligible to marry the Cambodian woman he loves and who loves him too. Or a true lover male from China aged 25, works as a supervisor in a Chinese garment factory in Phnom Penh and earns US$2,400 per month. He will not be considered eligible for marrying a Cambodian woman, say his assistant that he so much loves, and that loves him very much too. This can be considered as cruel against humanity the freedom of marriage guaranteed by the Cambodian Constitution.

Many Cambodian Americans aged below or above 50 may now find it hard to marry Cambodian women. There can be rich foreigners aged 50 or above who genuinely want to marry Cambodian women and retire in Cambodia but they are not eligible to marry Cambodian women because they are above 50.

I am not questioning MFA’s eligibility to regulate marriage of Cambodians and foreigners but I am questioning the content of the regulation with regard to its conformity to the Constitution and international convention.
I think that the regulation of international marriage by MFA should be about the procedure and requirements that do not violate the basic human rights and freedom, and non-discrimination principles protected by the Constitution and international conventions. This would include the requirement of presentation of criminal record (police clearance), certification of current marital status, passport, income statement, and perhaps health examination, etc. It is implicit that whatever regulation MFA issues must conform to the law and Constitution.

I appreciate the concern over trafficking of Cambodian women through fake marriage. I think this has happened. The rationale for the regulation should be supported by statistics showing how many Cambodian women have been trafficked through marriage; how many Cambodian women have been trafficked after marriage by foreign men aged 50 years old or above; and how many have been trafficked by foreign men that earn less than US$2,500 a month. On the other hand, it is difficult to imagine foreign men aged under 50 and earning more than US$2,500 are not among those who cheat Cambodian women through marriage.

There can be other options that prevent trafficking of women through marriage. Responsible MFA officials can examine marriage proposals by looking at many papers and interviewing before approving or not approving foreign marriage. There does not have to be such a decision that clearly violates the right of true lovers.

The problem is every public decision or policy cannot avoid adverse impact. The positive take is that it is alright if it benefits the majority and if the adversely affected minority can be taken care of, or at least compensated by other public interventions. The development principle is that NO INNOCENT PERSON SHOULD BE MADE WORSE OFF by public policy or national development. The normative question is whether or not the minority should be adversely affected by any public policy at all. It is really about judgment calls and it depends on the standard every country sets. This is why we need to debate. It is why public policies should be based on sound research and consultations.

I appreciate the merit to ensure that Cambodian women will enjoy their life overseas with their genuine foreign husbands. But this should be done in better alternatives. The Diplomatic Note in question explicitly and specifically aims to prevent human trafficking. But it may cause huge problems to genuine lovers. It may prevent trafficking of a few women (or even may not at all) but it violates the right of perhaps thousands of women and men both Cambodians and foreigners. There should be a better way to prevent human trafficking without imposing such negative consequences to the innocent.

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