ZenPundit
Thursday, July 21, 2005
 
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.
 
Comments:
As always, brilliant.

Where does the doctrine of international responsibility come from? Was it around in the actual Treaty of Westphalia, or is it a recent innovation?

-Dan tdaxp
 
Westphalian Sovereignty has always implied responsibilities that come with the prerogatives - at least until the Cold War/ Decolonization era and we began looking the other way as dysfunctional new governments multiplied and tolerating a lot of nonsense in the interests of fighting Communism.

Previously, if you sponsored irredentist or separatist groups, terrorists etc. who did things that infringed on your neighbor's peace, you were held accountable by the threat of war. Plausible deniability did not exist. Radical exiles were hounded throughout Europe in the 19th century because their home states had legitimate grievances about their seditious activities in the view of the host countries. WWI began because Serbia's intelligence service sponsorship of the Black Hand terrorists created a viable legal pretext for the Central Powers to take action.

The idea of a Sovereign permitting criminal activity directed at other sovereigns while insisting that their sovereignty prevents other from defending themselves is simply an act of abdication and nothing else.
 
Ps- I'm working on reflections on your last 5GW post
 
Mark,

I look forward to your thoughts!

My understanding is that Westphalia recognized that states have the legal monopoly of violence. Therefore violence conducted "out of" a state is the state's responsibility.

I guess I was wondering if that responsibility traditionally extends beyond that -- say, to Malaysia having a responsibility to stop priates that do not attack foreign ships in other nations' waters.

-Dan tdaxp
 
Good question.

Customarily, on the high seas pirates are regarded as outlaws ( which is why the framers made a point of making piracy a Federal and not a state jurisdictional issue in the U.S. Constitution).

Legal obligations to render help to those in distress ( victims of piracy) under international treaties *might* apply but the Malaysians are not *obligated* to engage in hot pursuit of pirates into say, Indonesia's territorial waters.
 
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