Letter to the Straits Times

From: Yan Jun [mailto:medp1128@hotmail.com]
Sent: Thursday, 2 February, 2017 17:04
To: The Straits Times <stforum@sph.com.sg>
Subject: Opinion to the ST: The state immuity defence in the Terrex detention issue is flawed

Dear The Straits Times (S.T.),

I would like to voice my opinion on a legal analysis appeared in the S.T.. My opinion is follows:  

I refer to the article “Terrex vehicles: Ball now in HK's court” (S.T. 10 Jan 2017). I disagree with the author Eugen Tan on his analysis because he misread the Hong Kong Apex Court's decision in 2011. The author argued that the vehicles ought to be returned to Singapore because Singapore-owned property automatically enjoy state immunity on the basis of the principle of absolute immunity established in Hong Kong Apex Court's decision in 2011. As for the illegal act of unloading the vehicles without a license, it was a matter between the shipping company and the Hong Kong authorities only.

The issue in Hong Kong Apex Court’s decision is whether state-owned property enjoys absolute or restrict immunity; however, the issue in Terrex incident is whether state-owned property automatically enjoys state immunity. If the author is right, the vehicles can be recovered even if the government deliberately ordered the shipping company to misbehave.

It is established that state immunity refers to a state’s “right to do something that other persons have no right to do”. In other words, state-own property enjoys state immunity only if the owner state has a full control of its property. Since the shipping company (APL) unloaded the vehicles without the consent from the Ministry of Defence (MINDEF), the vehicles didn’t enjoy state immunity.

If the MINDEF gave APL consent to the decision to unload the vehicles, the vehicles certainly enjoy state immunity but the sovereignty of Hong Kong/China would have been violated. In this situation, the Hong Kong authorities could legally detain the vehicles under Responsibility of States for Internationally Wrongful Acts 2001 by the International Law Commission (ILC) of the United Nations.

On 20 January, I already emailed my criticism of the state immunity defence to A/P Eugen Tan and Prof. Tan Cheng Han. None of the academics has so far responded to my criticism after 2 follow-up letters so it is safe for me to conclude that my opinion is correct.

I copied all my earlier emails to TODAY but TODAY didn’t contact me. So this letter is meant for publication in the S.T. only.

The state immunity defence has become public to the world but it is unfortunately seriously flawed. I would appreciate it if this letter appears in the S.T.

Thank you for your attention.

Regards,

Yan Jun

(S7684361I)

Address:

HP: 

From: Yan Jun [mailto:medp1128@hotmail.com]
Sent: Friday, January 20, 2017 10:46
To: Eugen Tan; Tan Cheng Han
Cc: Voices (Today); MINDEF; agc@agc.gov.sg; Reform Party; Singapore Democratic Party; Workers' Party
Subject: Terrex issue: State immunity vs Malice

Dear A/P Eugen Tan and Prof. Tan Cheng Han,

I refer to your brief analyses of state immunity in the article Sovereign immunity: An explainer (Today, 9 Jan 2017). With respect, I disagree with your  analyses.

The academics’ opinion

It was explained in the article that state-owned property automatically enjoys state immunity so the detention of the 9 armoured vehicles by Hong Kong authorities was supposed to be illegal.  

This argument is consistent with the government’s position that the vehicles ought to be returned on the basis of state immunity. While the unloading of the vehicles without a license is illegal, the government treats the wrongful act as a matter between the shipping company and the Hong Kong authorities. (See here)

The issue: Does state-owned property automatically enjoy state immunity?

My answer is in the negative. The privilege or the immunity that a state enjoys in respect of the equality of states refers to “the right to do something that other persons have no right to do” [1]. In consistent with this notion, the acquisition of state immunity is subject to the condition that a state has a full control of its property so other persons are unable to deal with it [2]. It is self-evident that stolen property doesn’t have state immunity.

At the heart of Terrex incident is who is responsible for the unloading of the armoured vehicles. The unloading of arms without a license in a state is against the international law because such an act infringes the sovereignty of the state. The consequence of the infringement of sovereignty is so disastrous that an act like this can only be explained by reason of malice.

If the academics are right, the government can legally recover the vehicles even if the Ministry of Defence (MINDEF) deliberately ordered the shipping company to unload the vehicles without a license.

Legal basis for the detention of the vehicles

If MINDEF is primarily responsible for the unloading, the vehicles certainly enjoy state immunity because the unloading was an act of governmental nature and the vehicles were under complete control of the government. However, it is clear that the sovereignty of China has been violated and as a result, Hong Kong authorities could legally detain the vehicles under Article 1 and 2 and 12 of the Responsibility of States for Internationally Wrongful Acts 2001 by the International Law Commission (ILC) of the United Nations [3].

If the shipping company is primarily responsible for the unloading, the vehicles don’t enjoy state immunity because neither the shipping company nor the vehicles were under the control of MINDEF. In other words, MINDEF didn’t have an absolute privilege to deal with the vehicles and consequently, MINDEF is not responsible for the infringement of sovereignty of China.

Questions for MINDEF

While “Defence Minister Ng Eng Hen urged people not to speculate on reasons or impute motives as to why the vehicles were held (See here)”, it is evident that MINDEF ought to explain in public why the vehicles were unloaded without a license at Hong Kong in order to back its claim of state immunity. In fact, the decision with regard to the unloading of the vehicles, or not, is supposed to be exclusively made by MINDEF as a government matter. The shipping company’s duty is to abide by rather than make such a decision.   

If MINDEF treats the unloading as a genuine mistake such as gross negligence on the part of the  shipping company, it ought to voice its opinion in public. For the sake of prudence, MINDEF may wish to state that it had no intention of unloading the vehicles at Hong Kong due to lack of a license. In this way, MINDEF can completely get off the hook even if the incident was caused by the 3^rd party including Hong Kong and Taiwan and mainland China.    

Why I write this letter

Soon I will stage my 5^th public protests against the judicial corruption in the Supreme Court (See my letters to the PM Lee Hsien Loong on 8 July and 8 Dec 2016) but I am afraid that passersby may ask me about Terrex issue. 

Terrex issue has nothing to do with my protests so I have no comments on it in public but will refer the passersby to academics for clarification. While I can pass along my opinion to the press, I am not sure it will appear in the newspaper.

Thank you for your attention to my concerns. I am looking forward to hearing from you soon.

Regards,

Yan Jun

[1] Protection of officials of foreign states according to international law by Franciszek Przetacznik.  (Springer; 1983 Edition , ISBN: 9024727219). p.10. Para. 2. Or see State Immunity: A Vanuatu Perspective by J.D. Foukona. Para 2.1 See http://www.usp.ac.fj/index.php?id=13176&type=98  

[2] Trendtex Trading Corp. v. Central Bank of Nigeria [1977] 2 W.L.R. 356. Lord Denning's judgment under "Alter ego or organ of government". See: http://www.uniset.ca/other/css/19772WLR356.html

[3] International Law by Malcolm N. Shaw (7^th Edition, 2014) p.569, Para 2. Article 1 reiterates the general rule that every internationally wrongful act of a state entails responsibility. Article 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and constitutes a breach of an international obligation of the state. Article 12 stipulates that there is a breach an international obligation when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin or character.