To be a Party or not to be a Party: Malaysia’s envisaged ‘withdrawal’ from its (pending) accession to the Rome Statute

As inter alia confirmed by its recent judgments concerning the Afghanistan situation and the Al Bashir case, the ICC currently finds itself in truly turbulent times. What is more, is that the Rome Statute has turned out to be a real treasure trove when it comes to the international law of treaties. This includes, inter alia, the ratification of the Rome Statute by Palestine and the ensuing question as to whether the accession by Palestine ought to be counted towards the quorum of 30 ratifications of the Kampala Amendment so as to provide for its entry into force (see here), as well as other intriguing questions of treaty law raised by the Kampala compromise on the crime of aggression and the way in which to eventually amend the Rome Statute (see here). The withdrawals by Gambia and South Africa, which both later, albeit for different reasons, ‘withdrew from their respective withdrawals’ before they even became effective (see here and here), as well as Burundi’s withdrawal in October 2017 (see here), and most recently that by the Phillipines, again raised various issues of treaty law. 

Yet another question of treaty law relating to the Rome Statute is emerging. After having submitted its instrument of accession to the UN Secretary General on 4 March 2019 (see here), which in accordance with Art. 126 (2) of the Rome Statute means that Malaysia would have formally become a State Party on 1 June 2019, the Malaysian Prime Minister announced on 5 April 2019 the Malaysian government’s decision to, as he put it, ‘rescind its membership of the Statute’.

The political reason underlying this decision is domestic criticism of Malaysia’s ratification of the Rome Statute, including from members of the Malaysian Royal Family. The criticism is that the ratification was unconstitutional because it was made without the permission of the Conference of Rulers, and that the ratification would nevertheless undermine Malaysia’s sovereignty and the dignity of the rulers by allegedly enabling legal actions against members of the Royal Family (see here and here). As a consequence, Malaysia’s Prime Minister announced the government’s decision to withdraw from ratification due to “political pressure and confusion among the rulers”.

Although not yet reflected in the UN’s official treaty list, it was reported in the Malaysian press on 8 May 2019 that Malaysia has officially informed the Secretary General, in his capacity as depositary, of its decision to ‘withdraw’ from the Rome Statute. It did so “after taking into consideration all necessary steps of implementation”, and assumes that Malaysia will be removed from the list of State Parties. This raises the question, whether this position is legally tenable, or whether instead Malaysia did not have to go through the process of formally terminating its status as a contracting State.

Art. 126 para. 2 versus Art. 127 para. 1 Rome Statute

On the one hand, Art. 126 (2) Rome Statute provides for a 60 day period between deposit of an instrument of accession or ratification and the entry into force of the Rome Statute for the respective State acceding to the treaty after its entry into force.

On the other hand, Art. 127 (1) Rome Statute provides that a withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

One has to therefore consider whether the Malaysian course of action, which took place prior to 1 June 2019 i.e. prior to the entry into force of the Rome Statute for Malaysia, but after Malaysia had made clear its intention to become fully bound by the Rome Statute, could be described as a mere actus contrarius to the instrument of ratification itself with immediate effect, or whether instead any such action would be tantamount to a withdrawal in accordance with Art. 127 (1) of the Rome Statute. As a consequence, provided the latter were the case and in line with the position taken by the OTP vis-à-vis Burundi (see here), eventual proceedings commenced during this one year notification period would not be affected by the withdrawal.

It is noteworthy that Art. 68 of the Vienna Law of Treaties (‘VCLT’) specifically provides for the revocation of unilateral notifications terminating the operation of a treaty at any time before such notifications take effect. This obviously invites an argumentum e contrario that notifications establishing the consent to be bound by a treaty are not subject to any such termination at will, but rather to the regular conditions for withdrawing from the respective treaty, unless the treaty provides otherwise.

State practice on this specific issue of treaty law, both prior to and after the entry into force of the VCLT, is scarce. On those few reported occasions where States in the past withdrew their instruments of accession prior to the entry into force of a treaty, no objections were made by other States. Inter alia, Aust reports that Greece withdrew its instrument of acceptance of the Convention on the Intergovernmental Maritime Organization in 1952 before the entry into force of the Convention on 17 March 1958. Similarly, Spain withdrew the instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats in 1958 prior to the entry into force of the Treaty on 1 January 1959. More recently, Italy in 1999, as well as Luxembourg in 2000, withdrew their respective instruments of ratification of the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement prior to its entry into force on 11 December 2001. In line with this practice, the UN Secretary General also seems to assume that States may withdraw with immediate effect from a treaty, even after having deposited a valid instrument of accession or ratification provided the treaty had not yet entered into force for the State concerned. It is also worth noting that during that United Nations Conference on the Law of Treaties, the delegate of the Ukrainian SSR had referred, albeit in the context of what was to become Art. 18 lit b) VCLT, to the “sovereign right of a State to withdraw from the treaty at any time before it finally became binding“.

As far as the Rome Statute itself is concerned, it ought also to be noted that Art. 127 (1 and 2) seems to imply that the withdrawing State must have already become fully bound by the treaty before that provision starts applying.  This is due to the fact that the said provision uses the term ‘State Party’, which exercises its right to withdraw from the treaty. Art. 2 (1) (g) VCLT in turn then defines “Party” to a treaty as meaning any State which has consented to be bound by the treaty and for which the treaty is (already) in force. What is more is that the Rome Statute does not contain any definition of what is meant by ‘State Parties’, and thus seems to refer back to general international law on the matter, as having been codified in the VCLT, and namely its Art. 2 (1) (g).

It follows, that until 1 June 2019 Malaysia could ‘withdraw’ its ratification of the Rome Statute without legal consequence and with immediate effect. This is so even if the decision is criticized from a political point of view and it certainly constitutes a considerable step backward for Malaysia’s international reputation, as well as for the cause of the ‘Rome Statute family’ more generally.