View from the Far Side: Of ‘Unpolished Jewels’, International Relations and International Law

Usually, unpolished jewels are not used for jewellery and neither do they fetch a high price – until they have been polished. Likewise, ‘unpolished diplomats’ should not be deployed because they do not have the high quality and cannot function as required.

By Nora

Of ‘Unpolished Jewels’

Recently, there have been laments on the Foreign Service being in decline. When Anifah Aman himself gave such an unpolished performance as a Foreign Minister recently in Washington, what would the public expect from the rest of the Foreign Service? But maybe it is only a case of one bad apple?

A diplomat who is supposed to uphold the image of our country in intricate international relations will not be capable of performing until s/he has acquired the basic shine (read that as skills and training) of being a diplomat. Until then, s/he should not be deployed as the nation’s representative, lest s/he brings shame to the country.

Most countries select their diplomats very carefully, and the ‘unpolished jewels’ do not get a posting until they achieve a certain level of skills and training. Knowledge of a language of the overseas country is not the sole requirement! The requirements should include, apart from a background of impeccable integrity, a successful formal training in the history, politics, economics, law and psyche of that overseas country, in international relations and with access to good advice on international law. Otherwise, the results could be very damaging to Malaysia.

Another example of damaging ‘diplomacy’ comes to mind – the late Dato’ M. Seth bin Mohd Saaid, the then-Acting Secretary State of Johore, who in 1953 wrote an official letter to the Colonial Secretary of Singapore stating that ‘the Johore Government does not claim ownership of Pedra Branca’. He had performed duties with another government ie. akin to international relations. With very damaging outcome to Malaysia – when the International Court of Justice (ICJ) used his 1953 letter for the judgement of the Pulau Batu Putih case!

By the way, this M. Seth bin Mohd Saaid was the son-in-law of the Sir Dato’ Onn Jaafar – via marriage to Dato’ Onn’s daughter, Saleha. (See: http://www.siapamoyanganda.com/salasilah/fam00083.html).

P/s: Isn’t Seth Mohd Said then the uncle of our equally undiplomatic (read that as damaging and kris-unsheathing) Hishammudin Hussein?

Of International Law — expert diplomats and State practice

For Malaysia’s sake, I would also like to highlight a couple of small but significant aspects of international law.

In all international disputes, for example regarding rocks, islands etc which have repercussions on State boundaries, other countries such as Singapore deploy their own expert diplomats. Yes, expert diplomats!

For example, the highly respectable and knowledgeable Ambassador-at-large H.E. Professor Tommy Koh of Singapore has been involved in the Law of the Sea negotiations since the 60s or so i.e. before the 1982 UN Convention on the Law of the Sea came into being. H.E. Professor Tommy Koh was even the President of the Third UN Conference on the Law of the Sea. As such, he has been serving with continuity in this Law of the Sea field, with some of his previous international colleagues now associated with the Tribunal on the Law of the Sea or the ICJ.

Do we have Malaysian expert diplomats for the Law of the Sea? Who have been attending the Law of the Sea negotiations and meetings (continuously) for Malaysia since the 1950s, 60s and 70s, or even the 80s?

On the Ambalat case, the Foreign Ministry, the AG and his legal eagles, the historians and their archived documents/maps, etc should all be working together and harder – harder than with the Pulau Batu Putih case, that Malaysia ruefully lost ….

Another important aspect I would like to highlight is that of State practice – how a State usually conducts itself or in reaction to an issue and its importance in international relations and especially in international law. So, politicians, Acting State Secretaries included, Attorney General, Foreign Ministry diplomats and others, please take heed! To emphasize the importance of State practices, it is also based on State practice that Malaysia won the Sipadan case and lost Pulau Batu Putih case.

For example: the legal status of Pedra Branca/Pulau Batu Puteh after the 1840s was discussed by the ICJ and it observed that in order to determine whether Malaysia has retained sovereignty over Pedra Branca/Pulau Batu Puteh following 1844 or whether sovereignty has since passed to Singapore, it needs to assess the relevant facts – consisting mainly of the conduct of the Parties during that period – by reference to the governing principles and rules of international law.

It noted that any passing of sovereignty might be by way of agreement between the two States in question eg. in the form of a treaty such as the 1824 Crawfurd Treaty and the 1927 Agreement, or arise from the tacit conduct of the Parties …. “Sovereignty over territory might under certain circumstances pass as a result of the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State or to concrete manifestations of the display of territorial sovereignty by the other State. Such manifestations of the display of sovereignty may call for a response if they are not to be opposable to the State in question. The absence of reaction may well amount to acquiescence. That is to say, silence may also speak, but only if the conduct of the other State calls for a response. Critical for the Court’s assessment of the conduct of the Parties is the central importance in international law and relations of State sovereignty over territory and of the stability and certainty of that sovereignty. Because of that, any passing of sovereignty over territory on the basis of the conduct of the Parties must be manifested clearly and without any doubt by that conduct and the relevant facts.”

However, please note that the Court consistently considers that "activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority". In both Sipadan and Pedra Branca cases, the Court has rejected the separate supporting submissions by Indonesia and Malaysia, respectively, that the disputed area was/is used by their fishermen since a long time ago. (For the full ICJ cases or documents, see: http://www.icj-cij.org/docket/index.php?p1=3&p2=2 )

As for members of the public who would like to know a bit more details about ‘What is State Practice’,  below is some simplified information:

The "best evidence" is the proof of state practice – which must generally be consistent-, ordinarily by reference to official documents and other indications of governmental action:

i) judgments & opinions of international judicial and arbitral tribunals;
ii) judgments & opinions of national judicial tribunals;
iii) the writings of scholars;
iv) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.

Ian Brownlie, in Principles of Public International Law, lists the following sources as evidence of custom:

"The material sources of custom are very numerous and include the following: diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly." (Note: highlights added by me.)

Finally, either Ambalat case, issues with Singapore such as land reclamation, or other cases – God speed, Malaysia!