What’s in a Phrase: Malaysia’s U-Turn on ICERD Ratification
On the international stage, words matter. When world leaders set out their policy agendas, they often use measured language. This not only preserves room for later political manoeuvre, but also prevents the countries they represent becoming bound by obligations under international law.
One need only consider the words used by Prime Minister Mahathir Mohamad when he told the UN General Assembly (UNGA) that Malaysia would commit to all core UN human rights treaties. Doing so is particularly relevant in light of the Pakatan Harapan (PH) government’s subsequent U-turn in respect of one of these treaties, the International Convention on the Elimination of All forms of Racial Discrimination (ICERD).
International law recognises that certain statements, referred to as ‘unilateral declarations’, can act as promises binding on the country which made them. The UN International Law Commission’s Guiding Principles summarise the International Court of Justice (ICJ)’s case law on the issue. In order for a country’s statement to qualify as a unilateral declaration, it must:
- be made publicly;
- be made by a representative with the authority to do so;
- be clear and specific, and;
- objectively show the country’s intention to be bound.
Could the Prime Minister have made a unilateral declaration in his UNGA speech by satisfying these four conditions, thereby binding Malaysia to ratify UN human rights treaties? He said:
‘The new Malaysia will firmly espouse the principles promoted by the UN in our international engagements…. It is within this context that the new government of Malaysia has pledged to ratify all remaining core UN instruments related to the protection of human rights. It will not be easy for us because Malaysia is multi-ethnic, multireligious, multicultural and multilingual. We will accord space and time for all to deliberate and to decide freely based on democracy.’
The speech was of course made in a public forum, and the Prime Minister undoubtedly has the authority to make unilateral declarations. But conditions (3) and (4) were simply not met.
A similar issue was brought before the ICJ in the Democratic Republic of Congo v Rwanda (2006) case. There, the Court had to decide whether an undertaking made by the Rwandan Justice Minister that Rwanda would withdraw opt outs (‘reservations’) it had made to human rights treaties counted as a unilateral declaration.
The Rwandan Justice Minister had said:
‘In 2004 alone, our Government ratified ten [human rights treaties]. The few instruments not yet ratified will shortly be ratified and past reservations not yet withdrawn will shortly be withdrawn.’
The ICJ held that this statement was not a unilateral declaration binding on Rwanda. Comparing the Prime Minister’s UNGA speech, it is clear that no unilateral declaration was made on Malaysia’s behalf either. The language the Prime Minister used was more vague and equivocal than that of the Rwandan Justice Minister. If the ICJ could not accept that Rwanda’s language was precise enough to bind it, it seems doubtful that Malaysia’s remarks would qualify.
An interesting point to note is that the Prime Minister referred to the PH government’s ratification pledge in the past tense — he was telling the UNGA about a political promise which had already been made, rather than making a new legal promise in his speech. Moreover, he went on to say that Malaysian society would be able to ‘decide freely’ on whether ratification went ahead.
The Prime Minister gave Malaysia significant leeway over how to conduct any moves to ratification. And because his speech made ratification conditional on the domestic political process, nobody could argue that there was an intention to make a legally binding commitment. In other words, PH kept its option to make a U-turn open.
Although it is difficult to know for sure whether the Prime Minister’s UNGA speech was drafted to avoid Malaysia incurring legal obligations, its phrasing was definitely deliberate. The lesson to learn is that words are rarely used in vain. Citizens should be mindful of the language chosen by our leaders — it telegraphs what their next moves on the political chessboard will be.
Picking up on these clues will be vital if Malaysians are to keep our leaders accountable in the spirit of Malaysia Baru. A sharp eye for language will help us hold those in office to the promises they have made, and to question the planning behind the promises they have not. Doing so is vital where our fundamental human rights are at stake.