ONE of the first concepts a student of international relations learns is sovereignty — whether it is derived from the divine right of kings, or bestowed through social contract, or gained through the Peace of Westphalia.
Some argue that sovereignty in today’s context is an obsolete term. Sovereignty is increasingly rendered meaningless by the strictures of today’s supranational bodies like the United Nations, or non-state actors like Amnesty International.
What many fail to understand is that sovereignty is not cast in stone. It is not a tangible thing that is ever present, an omnipotent force that you can quantify.
Sovereignty is fluid. It peaks and then wanes, goes through several permutations and comes out intact, and it adapts to almost any system of governance in the world.
But most of all, sovereignty is a matter of perception, which is why it can never be held up to the light and examined until after it is exercised.
This past month has been a field day for sovereignty scholars the world over, at least where Malaysia is concerned. There was the case of the Thai asylum seeker whom Malaysia returned to her native land. Rights activists denounced the move, with Human Rights Watch even going so far as to say that it was “in violation of Malaysia’s international legal obligations”.
What they were presumably referring to was the principle of non-refoulement. However, since Malaysia is not a signatory to the 1951 Convention Relating to the Status of Refugees, any obligations of the state are not strictly legal in nature.
In cases such as these, a state would have the sovereign right to decide if it wished to be bound by the dictates of a norm, or if it wanted to follow its own national interests. Sovereignty is exercised either way, because it is the state that makes the choice.
States are not unlike individuals. If an individual decides upon a course of action because it is what they perceive to be the best for them, or the path that brings them the most joy, then so it is with the state. Except that with states, the decision will have to be made between clamouring and conflicting voices within society to see which is the better path for the country as a whole.
The key phrase for the state is ‘as a whole’. Ultimately there will be citizens who will feel disappointed, angry or left out. This is where the task of the policymaker becomes difficult. Never mind their own feelings for a certain issue or their personal inclinations; a decision that is made is ‘good’ when it is in the interests of the majority of the population.
A month after we acceded to the much-touted Rome Statute, Malaysia withdrew from it, making us perhaps the only country in the world to withdraw from a treaty before it even enters into force.
A lot of thought went into both decisions. In the end, national interest won out. Malaysia then exercised its sovereign right to quit a club where the costs would far outweigh the benefits.
For four years at the United Nations, one of my subject matters was the Rome Statute. I arrived in New York convinced that the Rome Statute is a good thing.
Even though Malaysia was not party to the Rome Statute, we were still able to negotiate and join the discussions at the Assembly of States Parties, but without the right to vote. When the Security Council adopted resolution 1970 on Libya in 2011, it was obvious that the council would continue with its practice of referring cases to the International Criminal Court but inserting the clause that costs would be borne by the ICC, not by the United Nations.
As far as cop-outs go, this was indeed a stroke of genius on the part of some non-ICC member states.
Like the Convention Relating to the Status of Refugees, Malaysia’s withdrawal from the Rome Statute doesn’t mean that we are not committed to the spirit of the treaty. It just means that the time is not yet right for us to sign on the dotted line.
For the state, a treaty brings with it not only legal obligations but also administrative obligations. The reporting obligations for human rights treaties particularly, are so burdensome that so many states end up defaulting on their reports. These are obligations that a state needs to take into account when signing up to anything.
Sovereignty impinged is not necessarily sovereignty lost. But too much encroachment, and particularly to please a handful of loud, boisterous people who do not have the national interest at heart, is a blow that sovereignty can well do without.
The writer is a foreign service officer who has served in both bilateral and multilateral posts
