Malaysia and the Rome statute: the issue of sovereignty

The announcement of Malaysia’s accession to the Rome Statute on March 4, 2019 was met with strong objection by the opposition and some stake holders. One of the main arguments made by those who opposed the Rome Statute was that “it will, in the end, destroy national sovereignty.” Although the argument appears to be political rhetoric, it has already injected confusion among the general public and painted a dark picture that the Rome Statute is a hegemonic law that will rob Malaysia of its sovereignty. The main purpose of the present paper, therefore, is to set the record straight and to prove the simple fact that entering into a treaty is in fact a clear exercise of a State’s sovereignty and not to lose sovereignty. First of all, the paper reappraises the concept of sovereignty: in its original form and its evolution from 16th century to 21st century, on the basis of State practice, doctrine, and judicial pronouncements. Secondly, arguments against the Rome Statute made by some powerful States are analyzed and rebutted. Thirdly, Malaysia’s situation is objectively evaluated in the light of a comparison between the Rome Statute and other onerous treaties to which Malaysia has already been a party. The paper concludes with the findings that the traditional concept of ‘absolute sovereignty’ is no longer relevant in the contemporary interdependent world, that States with their own free will as a rule restrict their sovereignty to subject themselves to international law, and that Malaysia by no means will lose its sovereignty by acceding to a treaty while most importantly the Government must first of all need to convince the people that it is a right thing to do – it is beneficial to the people of Malaysia or it can achieve the higher aim of protecting the humanity

Determining fundamental breach in international sale of goods: taming the unruly horse?

The remedial system is the most distinctive feature of the United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980. The remedy of ‘avoidance’ is not available for every breach of contract, except for a fundamental one. Despite the fact that the term is specifically defined in Article 25, many commentators are of the view that the meaning of “fundamental breach” is vague and uncertain. The present paper analyses the dual elements of ‘fundamental breach’, namely, substantial detriment and unforeseeability, on the basis of interpretative tools of the Convention, legislative history and an in-depth survey of judicial decisions on fundamental breach from various countries. The paper finds that it is too drastic to say that the meaning of fundamental breach defined in CISG is rather vague, and that on the contrary, the meaning is clearly instructive and can be refined through judicial interpretation. The paper concludes that though it will take time for case law to completely cover most possible situations of fundamental breach, it is pretty clear at this stage that a number of basic principles for the determination of fundamental breach are well settled and established

Prompt release obligation in the jurisprudence of the International Tribunal for the Law of the Sea

In accordance with Article 292 of the UNCLOS 1982, the International Tribunal for the Law of the Sea shall in its judgment determine in each case whether or not the allegation made by the applicant that the detaining State has not complied with a provision of the Convention for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security is well-founded. Because the 1982 Convention bestows extended jurisdiction on coastal States - a jurisdiction reaching far beyond the territorial seas - this new procedural safeguard of Article 292 is said to have been incorporated as a quid pro quo in order to safeguard the interests of the shipping nations. The present paper is an attempt to observe how Article 292 is in fact interpreted and applied by the ITLOS in the nine prompt release cases filed before it to date. The main thrust of the paper is to examine whether the overriding purpose of Article 292, that is, to serve as a compromise between the conflicting interests of the coastal and the flag states is fulfilled

Prompt release of vesel and crew under article 292 of the UNCLOS: Is It An adequate safeguard against the powers of coastal states?

The enforcement powers of the coastal State over foreign vessels in their territorial seas normally include arrest of the crew, seizure of the vessels, and their detention that may extend for a considerable length of time. What makes the matter worst is the extension by the UNCLOS 1982 of the coastal State’s powers to the new legal regime of the exclusive economic zone that may extend up to 200 nautical miles from the baselines. These extensive enforcement powers of the coastal States may cause hardship to foreign crew and ship owners. To strike a balance between the interests of the coastal State and those of the flag State, Article 292 of the UNCLOS empowers the International Tribunal for the Law of the Sea (ITLOS) to determine whether or not the detaining State has complied with a provision of the Convention for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security. The main objective of the research, therefore, is to examine whether the overriding purpose of Article 292, that is, to serve as a compromise between the conflicting interests of the coastal and the flag States, is achieved. The methodology is primarily based on analysis of the nine prompt release cases filed before the ITLOS to date, exploring how Article 292 is in fact interpreted and applied by the Tribunal. The study concludes that despite the prompt release obligation, the coastal States naturally are in a position to tip the balance in their favour. The absence of direct access of private persons to the prompt release procedure and the tendency of the coastal State to confiscate the detained vessel are found to be the two main factors that may swing the balance towards the coastal State

Pedra Branca judgment and beyond: issues and challenges in its implementation by Malaysia and Singapore

The recent judgment of the ICJ in the Pedra Branca case is of crucial importance to Singapore and Malaysia because having resolved the question of which State has sovereignty over Pedra Branca and Middle Rocks, the Court has paved the way for the resolution of the delimitation of the maritime boundaries between the two States. However, this matter, as does South Ledge’s legal status, still needs to be further worked out by the “Joint Technical Committee” the two States have subsequently set up for the purpose. Moreover, the Court’s judgment and subsequent decisions of the Technical Committee affect the exercise of sovereign rights in those waters such as the conduct of naval patrols, navigational aids, protection of the marine environment and the exploitation of natural resources. Another vital complexity is how Indonesia’s maritime rights generated by its islands in the Straits of Singapore will be negotiated with Singapore and Malaysia

Seaweed and mangrove issues from International Law perspective

Since Malaysia is a coastal State with invaluable mangroves and atolls and coastal areas, surrounded by resource-rich seas, to make the Malaysian maritime areas to be clean and pollution-free is a matter of grave concern for the country. Seaweed farming in Malaysia can possibly be governed by the Fisheries Act. What we need is to adopt a new “Fisheries (Seaweed Farming) Regulations” under s. 61 of the Fisheries Act to regulate seaweed farming in Malaysia. The protection and preservation of mangrove forests need integrated cooperation among the various government agencies. The protection and preservation of mangrove forests need integrated cooperation among the various government agencies. Although we have National Forestry Act 1984, It is proposed that it should be amended to include specific provisions for the protection and preservation of mangroves