Treaties, trysts and territory taking

No treaty is ever an impediment to a cheat.

—  Sophocles, Greek playwright

The Vienna Convention’s Article 2(1)(a) on the Law of Treaties defines a ‘treaty’ as “a binding international agreement concluded between sovereign states (nations or countries) in written form and governed by international law.” MA63 sits uncomfortably under the shade of this definition.

Law students learn that Parliament is supreme in the UK. Curiously, in R v Secretary of State, ex parte Rees-Mogg [1994] 1 All ER 457, CA, the court declared that the Crown, i.e. the Executive, concludes treaties, therefore Parliament’s approval or acceptance is not needed or necessary. So, when MA63 was being arranged, was the British Parliament silent with nary an objection?

Did Sabah and Sarawak have any internal laws of fundamental importance that could have invalidated MA63 under Article 46 of the Vienna Convention that questioned the treaty-making authority as highlighted in the Rio Martin Case (1926) 2 RIAA 615; Legal Status of Greenland Case (1933) PCIJ Rep. Ser. A/B, No.53; and the Maritime Delimitation & Territorial Questions (Qatar v Bahrain), 1994 ICJ Rep. 112?

Using the 1494 Treaty of Tordesillas with the approval of the Pope, Portugal and Spain divided the globe equally between themselves. Malacca became Portuguese territory in 1511. The Spaniards headed for South America. This got the Dutch and the British feeling insecure motivating them to become naval powers, too.

Imagine the Orang Asli occupying the Golden Chersonese, and the native Americans launching naval attacks upon Spain and Portugal, in retaliation, for the purposes of treaty-making and territorial expansion under the rule of law.

Thus began the trysts with treaties of the then superpowers in the name of the law to discover, occupy and conquer other peoples’ territories while creating federations with unconvinced partners.

American author Noah Feldman, wrote: “The rise of the presidency began with the Louisiana Purchase in 1803 doubling the land mass of the United States. History teaches that, just as Rome changed from republic to empire with conquest of new lands, territorial acquisition would lead to the centralisation of political power.”

Political power is always the problem, never the solution in the hallowed name of democracy.

The East India Company of 1600 witnessed a twist to treaty-making in that businessmen coerced British politicians to trade with wealth-laden India. The early British traders stayed on to become administrators until 1947 when Indians politely suggested Brexit.

Trade and commerce were the Jardine-Matheson purpose for the acquisition of the lucrative opium trade that wrought Hong Kong into the British Empire until 1997. Territorial expansion is secure business.

Treaty-making and constant treaty-breaking was the bane and doom of indigenous peoples of America with a revolutionary mindset operating as a civilised central government in Washington DC.

We had our share of treaty atrocities with the Anglo-Dutch Treaty of 1824 defining the boundaries of “British Malaya” and the “Dutch East Indies.” In 1909, the Anglo-Siamese Treaty carved out the boundaries between “British Malaya” and present-day Thailand.

The Pangkor Treaty of 1874 entrenched British imperialism over the Malay peninsula, and its rulers, that led to the murder of J W Birch, the first British Resident. Treaties did not seem to matter much when other passions were ignited. Imported British criminal law overruled international law.

Malaysia reportedly has over 180 globally-recognised treaties with several nations. Most notably MA63, still a mystery packaged as a conundrum, debated as a riddle, and dismissed as a Gordian knot. Very much a veritable bee in the bonnet for Sabah, Sarawak, the UK and Malaysia as a holistic partnership with the screaming silence of the nonchalant United Nations.

Abraham Lincoln said it pointedly: “The best way to repeal a law, or a treaty, is to enforce it strictly.” MA63 stands tall while the victors, victims, theorists and fence-sitters play vigilantes now that the “communist threat” has permanently evaporated.

While parliamentary supremacy in the UK and the supremacy of the Federal Constitution of Malaysia are unequivocal, recent events bear ample testimony to the supremacy of the Executive, like an armed revolt, where government of the people, by the people and for the people do not matter.

The word “people” is mentioned three times, while “government” is mentioned just once in this deft definition of democracy. Decision-making at the polls is not democratic if the unwritten rule of law is ousted as an annoying proverb.

Caveat: “Rule of law” and “democracy” are not expressly mentioned in the Federal Constitution!

The views expressed are those of the columnist and do not necessarily reflect the official policy or position of the New Sarawak Tribune.