sabah stand off in relation to international law

8/10/2019 Sabah Stand Off in Relation to International Law

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SABAH STAND OFF IN RELATION TO INTERNATIONAL LAW

FACTS:

Under a treaty entered into with the sultans of Sulu and Maguindanao in 1640, the

Spaniards recognized the independence of the two sultanates. Thus, the Sulu sultan

later became the sovereign ruler of Sabah. A 10-year civil war broke out in Brunei

between two sultans, one of whom Sultan Muaddin requested military aid from the

Sulu sultan. In 1675, the Brunei civil war ended. The victor, Sultan Muaddin, later ceded

Sabah to the Sulu sultan. In 1878, the Sulu sultan entered into a deed of pajak with

Austrian Gustavus Baron de Overbeck and Englishman Alfred Dent, who were

representatives of a British company. The deed was written in Arabic. In 1946,

professor Harold Conklin translated the term pajak as lease. The 1878 Deed provided

for an annual rental. This treaty constitutes the main basis of the territorial dispute

between the Philippines and Malaysia over Sabah. The Philippines claims that the term

pajak means lease while Malaysia claims that it means cession. Lease means a

contract by which a rightful possessor of real property conveys the right to use and

occupy the pr operty for consideration, usually rent. Cession means the relinquishment

or transfer of land from one state to another. In 1881, the syndicate represented by

Overbeck and Dent was chartered as British North Borneo Co. In 1898, under the

Treaty of Paris, Spain sold the Philippines to the United States. The treaty boundaries

allegedly did not include Sabah. During World War II, the Japanese occupied Brunei.

After the war, in 1946, the British Crown granted Brunei the status of crown colony. In

1963, Sabah joined Malaysia the Philippine claim is based on the argument that the

1878 Deed or pajak was a treaty of lease. In 1950, Congress adopted a concurrent

resolution expressing the sense of the Philippines that North Borneo belongs to the

heirs of the sultan of Sulu and the ultimate sovereignty of the Republic of the

Philippines, and authorizing the President to conduct negotiations for the restoration of

such ownership and sovereign jurisdiction over said territory. In 1961, President

Diosdado Macapagal filed the Philippine claim to Sabah. The next year, in the UN

General Assembly, the Philippine Vice President appealed for help in promoting a


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peaceful resolution to the Sabah issue. In 1962, the heirs of the Sulu sultan issued a

declaration, titled Recognition and authority in favor of the Republic of the Philippines,

which ceded and transferred sovereignty over Sabah to the Philippines. The Republic of

the Philippines accepted the cession of sovereignty made by the Sulu sultan. In that

same year, Congress reiterated its 1950 resolution. The Sulu sultans heirs later met

with President Corazon Aquino, who advised them to organize themselves. She wrote

the Malaysian prime minister asking him to increase the lease payment. However,

Malaysia contended that in 19 89, the Sulu sultans heirs had revoked their authorization

issued to the Philippine government as their representative.

ANALYSIS:

In international law, if you begin with nothing, you end with nothing. The two

Europeans never acquired sovereignty over Sabah and had no power to transfer that

sovereignty to BNBC, to the British Crown or to Malaysia, which is merely a successor-

in-interest to Britain. In February 1964, the Malaysian prime minister entered into an

understanding with the Philippine President to discuss as soon as possible the best way

of settling the dispute, not precluding reference to the International Court of Justice.

In August of that year, the two governments, in an exchange of aides-memoire,

authorized a meeting of their representatives in Bangkok to clarify the Philippine claim

and discuss the means of settling the dispute. In 1966, Malaysia sent a diplomatic note

repeating its assurances on the concern of the two governments over the Sabah

dispute. In February 1966, the Philippines prop osed that both governments agree as

soon as possible on a mode of settlement that is mutually acceptable to both parties.

As a student of international law, I humbly submit that the historical records indicate

that sovereignty over Sabah was vested in th e Sulu sultan. In turn, the sultans heirs

ceded sovereignty over Sabah to the Philippines. Therefore, it is the Philippines that

now possesses sovereignty over Sabah. Malaysias claim is based only on two British

representatives, Overbeck and Dent, who entered into the so-called 1878 Deed. Since

the Malaysian claim ultimately depends upon this deed, then the claim is questionable

on two grounds. First, since the deed is written in Arabic, it is a question whether the


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intent was to engage in a deed of lease or in a deed of cession. Second, under

international law, British nationals could not assume state sovereignty; they had no

legal status to accept a deed of cession of territory. Under international law, a lease of

territory is an agreement by which a subject, ordinarily a state, grants another subject

of international law, also ordinarily a state, the right to use and exercise control over

part of the formers territory. Once territory is leased, sovereignty over it remains with

the lessor and is divorced from jurisdiction, which is granted to the lessee. Lease of

territory is usually granted in return for an annual fee. Wrongful acts committed with

respect to a leased territory follow the general rules of attribution. Since Malaysia

apparently has committed wrongful acts, which have resulted in the deaths of Filipinos

in Sabah, Malaysia has assumed state responsibility. Under international law today, the

focus is on the human rights obligations of Malaysia toward the Filipino individuals and

population associated with Sabah. My humble recommendation is that the disputants

settle the dispute in the first instance by the method of inquiry and fact finding. What

actually happened during the recent Sabah event? Does resorting to armed force confer

state responsibility on Malaysia for internationally wrongful acts? Under modern

international law, the forceful actions of states are limited by the principle of necessity

and the principle of proportionality. Necessity is a component of legitimate self-defense

and requires that any forceful action must be by way of last resort. Proportionality is

the principle that the use of force should be in proportion to the threat or grievance

provoking the use of force. These are the human rights issues that need to be

immediately and equitably addressed. Many of the charlatans and overnight Sabah

claim experts thought they were patriots fighting for Philippine national interest. They

didnt even realize that the arguments they were mouthing were supporting Chinas

very claims to our territory in the South China Sea.

sabah stand off in relation to international law

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