On March 22, 2013, the University of Malaya hosted a forum on the Sabah question in the wake of the Lahad Datu incident, in which around 200 followers of the Sultan of Sulu launched an attack, purportedly to enforce the old Sultanate’s ownership of portions of what used to be called North Borneo.
I, and Prof. Julkipli M. Wadi of the Islamic Studies program of the University of the Philippines Asian Center, were the Philippine representatives in the conference, in which senior Malaysian scholars who prepared the historical case for Malaysia’s successful prosecution of the 2002 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) before the International Court of Justice (ICJ) were our main interlocutors.
The Philippines intervened in that case, seeing how its outcome may affect its own claim over Sabah, an oil-rich region that, with Sarawak, make up for 60 percent of Malaysia’s petroleum production. While the ICJ rejected the Philippine intervention, it stated that it recognizes that there is such a Philippine claim.
I recalled this forum after the exchange of diplomatic notes in the last few weeks between the Philippines and Malaysia over Sabah. This has to do with submissions made by Malaysia to the UN on its claim for an extended continental shelf, which are anchored on baselines marked out along Sabah’s coasts, as well as on the Philippines’ Spratly Islands claim, which intersect at some points with Malaysia’s own.
History indeed remains such a powerful force in the trajectories of nations and peoples. It cannot be denied; it must be properly addressed. Yet, as can be expected, such a complex issue cannot be adequately covered by a discussion of only a couple of hours. In that forum I decided to limit my discussion to only three points, the first two being on the strongest arguments Malaysia may have to assert its sovereignty over Sabah, and the last one, on the Lahad Datu incident proper.
Even so, I hope that my remarks here (a slightly edited version of what was delivered), while being an abbreviated take on nearly a century and a half of historical contestations, somehow serve to illuminate important points on the continuing territorial contestation.
We are especially honored to be sitting at the same table with very accomplished senior Malaysian academics, Professors Mohamad Abu Bakar and D.S. Ranjit Singh. That they have agreed to dialogue on this all-too important topic with us more junior scholars on the Philippine side speak volumes about their humility and magnanimity. For that we are grateful.
This is very much needed, as a highly emotional topic such as this is bound to a lot of misunderstanding. For starters there is widespread belief that the Philippine claim embraces the entirety of Sabah. It does not, but only about a third of what is now Sabah.
Given the limited time available and the broad range of topics that may fall within the ambit of the present discussion, I will deal only with a focused resume of important legal questions relevant to our present discussion, in the hope that these may serve as a springboard for a fruitful and enlightening discussion this morning.
Indeed what we have seen in Lahad Datu is the powerful resurgence of historical memory at a time when the discourse of a modernizing or a modern state has seemed all too pervasive. In that sense, history may overshadow the legal aspect to the dispute. Nevertheless, we must discuss the legal side, for a fuller view of things.
First, I will deal with what I consider to be the most salient of the international legal issues attendant to the territorial dispute between the Philippines and Malaysia over a portion of North Borneo.
The second, I will then discuss key points of the claims to historic title by the Philippines that is not often given the attention they deserve.
Finally, I will then deal with the way Malaysian authorities have tackled the Sultanate of Sulu’s so-called Royal Security Force.
My first point: What the Philippines must effectively address in its claims to historic title over Sabah is the claim by Malaysia to the right to self-determination, which is a jus cogen norm subject of erga omnes obligations.
In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:
Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”
This is strong language, with the tenor of definitiveness. Of course, it should not be forgotten that this is the opinion of the Malaysian-nominated judge to the ICJ in this case. Yet, while it is not part of the majority opinion, in many ways it reflects contemporary thinking in international law on the weight of historical claims over the exercise of self-determination. The ICJ’s pronouncements in Barcelona Traction, East Timor and Wall Opinion cases have indeed acknowledged the binding nature of this by now well-recognized principle of self-determination.
The question for the Philippines, however, is whether the factual characterization by Judge Franck of the exercise by the people of North Borneo of this right is borne by historical reality.
First, from the very beginning, the Philippines committed itself to welcome the creation of the new state of Malaysia subject to the final outcome of its claim over Sabah. This is clearly supported by the following:
It is important to note that these are not mere unilateral declarations but are tripartite and bilateral documents that are binding upon the signatories. In the case of the Joint Statement, they all agreed that the Philippines will continue to pursue it claim even after the inclusion of Sabah in the Malaysian Federation. In the case of the 1966 joint Communique, Malaysia without a doubt, by its consent to it, forfeited any advantage it might have acquired through the UN ascertainment of 1963.
This leads me to the next point under this section.
- The Report and Recommendations of the Conference of Foreign Ministers of the Federation of Malaya, the Republic of Indonesia and the Republic of the Philippines to their respective Heads of Government, dated 1 June 963. What is important in this document, especially Para. 12, states that both Malaysia and Indonesia recognized the Philippine position that it had a right to pursue its claim according to international law and the peaceful settlement of disputes and all three agreed that the inclusion of North Borneo in the federation would not prejudice either the claim or any right arising from it.
- The Manila Accord of 31 July 1963, signed by President Macapagal, President Sukarno and Prime Minister Tunku Abdul Rahman, adopted in toto the report of the Foreign Ministers earlier referred to.
- The Joint Statement of 5 August 1963 by the Three Heads of Government, especially its para. 8, which referred to the Manila Accord, and reiterated their joint view that they agreed to seek a just and expeditious solution to the dispute between the British government and the Philippines over Sabah through negotiations, conciliation, arbitration or judicial settlement, or other peaceful means of resolving the issue. In addition, they affirmed that they take cognizance of the Philippine claim to Sabah “after the establishment of the Federation of Malaysia as provided under para. 12 of the Manila Accord, that is, the inclusion of Sabah in the Federation of Malaysia does not prejudice either the claim or any right thereunder.”
- In 1966, when relations between them normalized, Malaysia and the Philippines, in a joint Communique of 3 June 1966, “agreed to abide by the Manila Accord of 31 July 1963 and with the Joint Statement accompanying it, for the peaceful settlement of the Philippine claim to Sabah.” they further agreed that to the need to sit together to clarify the claim and reach a satisfactory resolution to the issue.
- And then, following the proclamation of the creation of the Federation of Malaysia on 16 September 1963, Manila and Kuala Lumpur engaged in a series of exchanges of Joint Communiques, aides memoirs, Notes Verbale or diplomatic notes, all expressing the sense that both parties have remained committed to the terms of the Manila Accord of 1962. These exchanges ran from 1964 to 1968.
From the very beginning, the Philippines has demanded that any referendum in Sabah on the question of its inclusion in the Malaysian Federation be authentic and bona fide, and under circumstances that ensured the free and enlightened expression of the Sabahan’s will.
But the so-called Sabah referendum was anything but a representative referendum. It’s subject matter was actually only the election of local officials. The question of whether the people of Sabah wished to remain with Malaysia or to join the Philippines was not at all asked in the ballots issued to voters.
Moreover, much to the embarrassment of UN officials, Malaysia announced the date of the creation of the federation even before the results of the so-called referendum could be released, as if it had already been predetermined.
In the wake of the Lahad Datu incident, the Malaysian government made the claim that two-thirds of the people of Sabah agreed to be part of Malaysia in 1962.
Sabah opposition leaders like Jeffrey Kitingan however dispute this, arguing that what actually took place was a referendum of less than four percent of the people. If at all, Kitingan’s statement confirms the Philippines’ position from the very beginning.
Moreover, he also argues that all the relevant parties, including the Sabahans, should find a peaceful solution to the dispute under the ambit of the United Kingdom and the United Nations.
In any case, today’s adamant refusal by Malaysian authorities to consider a joint submission with the Philippines on the Sabah question to an international tribunal is a complete turnaround from its previous position on the matter.
They cannot however, deny documents to which Malaysia was a willing party and that are binding under international law.
Allow me now to discuss my second point. In the Sipadan and Ligitan case, the ICJ denied the Philippine bid to be allowed to intervene, saying it did not show any specific legal interest in the dispute.
However, what proved important to the Philippines is the declaration by the ICJ that it recognizes the existence of the Philippine position on Sabah.
This was the very first time the Philippines was able to articulate its claim to Sabah before an international tribunal, although the Court ruled that its claim was not at issue in the proceedings. What exactly is this claim by the Philippines?
As we argued in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)ours “is a territorial claim on a portion of Sabah which properly belongs to the Philippines on the basis of a sound title jure gentium and which Malaysia is improperly occupying on the basis of a faulty title which had been transferred to it by a prior faulty title holder.” Indeed, the Philippines is not claiming all of Sabah or contesting its political legitimacy. We are simply claiming a piece of territory in North Borneo on the basis of a clear chain of title.
At its heart is the claim that the1878 contract entered into between the Sultan of Sulu and the prospectors Dent and Overbeck is one of lease and not of transfer of sovereignty.
This lease contract was later passed on by the prospectors to the British North Borneo Company (BNBC), which in turn, sold its rights under the contract to the British Crown. As in international law, sovereignty can only be ceded to sovereign entities or to individuals acting for any sovereign entity Overbeck and Dent did not have the power to pass on to BNBC sovereignty over the properties of the Sultanate of Sulu over portions of North Borneo, they being neither sovereign entities nor individuals acting for any sovereign entity.
In fact, in 1903, the BNBC would sign with the Sultanate of Sulu a confirmatory Deed to the original terms of the 1878 lease.
From 1878 to just before the1946 Cession, the British Crown has always recognized the 1878 contract as no more than a lease. The British Foreign Minister, Lord Granville, assuring the Spaniards that the BNBC is not acquiring dominion and sovereignty in North Borneo, stated thus:
The Crown assumes no dominion or sovereignty over the territories occupied by the company nor does it purport to grant to the Company any powers of government thereover; it merely confers upon the persons associated the status and incidents of a body corporate and recognize the grants of territory and the powers of government made and delegated by the Sultan in whom the sovereignty remains vested.
The British Foreign Minister would go on to say the BNBC was merely an administrator. To the same effect, the Prime Minister, Mr. William Gladstone, in the debates in the House of Commons, gave an important speech.
Thus Malaysia acquired no more than a derivative title from the British crown, which could not be any better than what the BNBC acquired from Overbeck and Dent.
And Malaysia’s continuing payment of pajak to the heirs of the Sultan of Sulu, on the basis of the 1939 probate of the will of Sultan Jamalul Kiram by North Borneo Chief Justice Macaskie, in the amount of 5, 300 dollars annually, further affirm the Philippine position.
The Chief Justice, in his decision dated18 December 1939, thus said:
It is abundantly plain that the successors in Sovereignty of the Sultan of Sulu are the Government of the Philippine islands, but Mr. De Leon contends that the decision of the Philippine courts in the administration suit relating to the late Sultan’s estate precludes that government from asserting any claim to the cession monies. In my view, this is correct. The Philippine government allowed Sultan Jamalul Kiram to enjoy cession monies as a private person sine 1915; they have made no claim on his death and by a judgment of a Philippine court recognized the right of the private heirs of the Sultan to receive the cession monies. (based on the Maxwell-Gibson translation of 1878)
Justice Macaskie here has two aspects of the question in mind. First, he recognizes that there are rights to sovereignty which now pertain to the Government of the Philippines and there are proprietary rights that accrue to the heirs of the Sultan of Sulu.
This distinction may provide an alternative that could be most beneficial to all concerned. Of course, there is also the option of the Philippine government waiving the sovereignty question, but pursuing its right to reparations over the loss of territory in a process that, from its perspective, was inequitable, even legally anomalous. Given the limitations of this forum, I’m afraid these options will require further elaboration best reserved for another occasion.
My third point : on the current situation in Lahad Datu, the question of the arrested members of the RSF and Filipinos caught in the cross-fire in Sabah
Please allow me to take this opportunity to bring to your attention international legal obligations that Malaysia and the Philippines need to observe in dealing with the Lahad Datu incident.
According to the Swiss arbitrator Max Huber in the Las Palmas case, one state’s sovereignty over its territory comes with the concomitant obligations towards the rights of other States:
Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.
In other words, the fact that one has sovereign claims over a piece of territory does not entitle it to wanton ill-treatment of foreigners found within that territory, even assuming for the sake of argument that these foreigners are alleged to have committed acts inimical to the interests of the state. Thus Malaysia has obligations under international law to accord the 200 or so followers of the Sultan of Sulu with the rights protections.
Thus, I view with much trepidation the refusal by Malaysian authorities to allow Philippine consular officials to exercise their duty to provide consular protection to arrested members of the Royal Sultanate Security Force under the terms of Art. 36 of the Vienna Convention on Consular and Diplomatic Protection.
In both the La Grand and Avena Cases, the ICJ has laid down the positive duty of states to accord consular privileges to sending states whose nationals have run into trouble in the jurisdiction of the receiving states. The right of a state to claim rights for its nationals abroad is referred to as “diplomatic protection”. Here, the duty of the state is to ensure that states treat their nationals abroad in a manner that complies with human standards recognized under the International Covenant on Civil and Political rights, among others documents.
Thus, it is to the interest of both the Philippines and Malaysia that the rights of the Sultan of Sulu’s followers arrested in Sabah are assured and accorded rights guaranteed under international law.
The full legal claim by the Philippines over Sabah (North Borneo) has been declared by its agent, Professor Merlin M. Magallona, in its intervention in the Sipadan and Ligitan case. Click here for the transcript of the oral proceedings before the ICJ, where Professor Magallona details for the ICJ’s appreciation the Philippine claim,