Initial thoughts on the Sabah standoff

For background on the current Sabah standoff, click here.

My initial thoughts:

sabahWhat the Philippines must effectively address in its claims to historic title over Sabah: the right to self-determination, which is customary and is subject of both erga omnes partes and erga omnes omnium 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:

“13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary-General of the United Nations was entrusted under the Manila Accord of 3 1 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: “[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives” (quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, Eigteenth Session, UN doc. No. AIPV. 121 9).

14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 je) Non-Self-Governing Territory (Note by the Secretary-General, Political ancl Consfitutionak Information on Asian Territories under United Kingdom Administration, UN doc. NO. Al54021 Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization juris- diction (see Yearbook of the United Nations 1964, pp. 41 1-435, which omits North Borneo from the Cornmittee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self-determination.

15. 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.”

Click here for the link to the full text of Judge Franck’s separate opinion.

I am not saying the Philippine case is hopeless. I am just saying there’s a very big legal hurdle to its claim to sovereignty over Sabah that needs serious consideration.

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2 Comments

Filed under Decolonization, Malaysia, Philippines, Sabah, Self-determination, Sultanate of Sulu

2 responses to “Initial thoughts on the Sabah standoff

  1. There’s hope. Here’s my reply to one Steven Rogers. Hope it can enlighten….
    @Steven Rogers: I think as a 3rd-party commentator on the North Borneo issue, it’s quite remarkable for you to have fallen for the pugnacious tone of ICJ judge Thomas Franck, who could, for example say things like: “.. …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.” Considering that Franck was only writing a separate opinion, and was not tasked by the court to write the ICJ ruling on his own, it would seem that Mr. Franck took upon himself the task of demolishing the Philippine historic claim without hearing its side. That Mr Franck made a side ruling on a case that involved only litigants Malaysia and Indonesia re the disputed island of Labuan, et al and NOT on the Philippine claim itself, is grossly unfair to us and smacks of judicial arrogance .
    In any case, let us examine why Franck so aggressively rules as he did. He premised it on the UN findings that “… the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: “[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region…” In other words, their so-called “right to self-determination.” And, how did they express this right? By a proper and free referendum? NO WAY! Thoughtful?

    The Flawed Cobbold Commission.
    Much has been written about this Cobbold Commission that the British hurriedly arranged to get people of North Borneo to say something about their new status as “decolonized, non-self governed people” under UN Res. 1514. Not to mention that Brunei, North Borneo and Sarawak had their own ideas about forming their own Federation (together w/ Singapore). So they got Lord Cobbold, a former Bank of England head, to count heads. Lord Cobbold did just that. Out of the combined total population of 1,198,950 people in North Borneo and Sarawak in August 1962, the Cobbold Commission received 2,200 written letters and memoranda (0.183% of the population) and 4,000 or so people appeared to give their views orally (0.334% of the population). Cobbold Commission’s members made it appear that MAJORITY of Sabah and Sarawak peoples agreed in a REFERENDUM to join the Federation of Malaysia!
    How can 6,200 people express the views of some 2 MILLION residents, pray tell me?
    The Deception of Great Britain and Malaysia.
    In 1962, the Cobbold Commission that heard HALF A PERCENT (0.5%) of the total population of North Borneo/ Sabah and Sarawak decided that this represented an affirmative decision to proceed with the signing of the 9 July 1963 Malaysia Agreement, even though a significant proportion of the 0.5% who bothered to respond to the Cobbold Commission had expressed reservations to the idea of forming Malaysia and requested more time.
    More time? Let’s hear what Cobbold himself reported – that one-third strongly wanted to join the Malaya Federation, another one-third would if there were safeguards, and the remaining third wanted to see the formation of the federation first before they will consider joining. Remember that Cobbold was talking about the 0. 517% of the population, but of course he did not let on that less than 1,000 of the 6,200 were educated.

    So much for self-determination. More like manipulation.

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