PIRACY AND THE POST-WESTPHALIAN DOCTRINE OF SOVEREIGN IRRESPONSIBILITY
Pirates, the terrorists of the ancient world, are in the news a lot these days it seems. Curzon
at Coming Anarchy
, among other blogs today, covered this issue in " Avast
" and "More on Piracy
". It is the information in the last post
provided by Curzon that I find important ( as well as highly irritating)."Malaysia 'will never allow' foreign military forces to help patrol the Malacca strait, which is vulnerable to pirate attacks, Prime Minister Abdullah Ahmad Badawi said. 'Malaysia firmly believes in the principle of a country's independence, however small,' Abdullah said in a speech to the ruling United Malays National Organization (UMNO) general assembly. 'Based on that principle, Malaysia stands firm in the belief that the responsibility of ensuring the security of the waters of the Malacca strait is ours,' he told some 2,500 party leaders at the annual talks. 'We will never allow foreign military to conduct patrols in those waters,' he said. 'Their presence, without our approval, would be a breach that we would regard as disrespectful of our country's independence.' "The reaction of the Malaysian Prime Minister, to put it in international law theory terms, amounts to an enunciation of a Doctrine of Sovereign Irresponsibility. As artfully nationalistic developing-world bluster, the statement fits in neatly with the spirit of the post-Westphalian Age but it has all the legal standing of a bin Laden fatwa.
Sovereign powers are respected as sovereigns under International Law precisely because they exercise authority over and accept juridical responsibility for a defined and internationally recognized territory. With the perks of sovereignty come responsibilities - namely maintaining law and order. A sovereign who fails to do so on a continual basis calls their international legitimacy into legal question. By claiming sovereignty but failing to maintain free passage in the Malacca straits ( an international sea lane) the P.M. is trying to have his cake and eat it too.
Secondly, Maylasia's sovereignty over the straits is, in any event, limited here by their adhering
to the Law of the Sea Treaty
which recognizes the rights of foreign ships - including armed ones - to pass through. Furthermore, these ships may defend themselves against piracy both under customary international law and under the Law of the Sea Convention's " Force Majeure" clause in Article 39.
. Legally, the Malaysians do not have a leg to stand on and if we were to dig deeply into the piracy issue - a part of the big business of Transnational Organized Crime - we might be surprised to discover to whom these pirate gangs have financial connections. Internationally as well as locally.
The Malaysian Prime Minister may be doing little more than playing to the injured pride of his countrymen but the time is long overdue to stop excusing developing nations from their duties as sovereigns while granting them all of the diplomatic benefits.