Sabah issue in international lawBy Sen. Miriam Defensor-Santiago
Philippine Daily Inquirer
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.
Main basis of dispute
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 property 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. (BNBC). 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.
What’s at stake
At stake in the territorial dispute over Sabah between the Philippines and Malaysia are two main prizes: natural resources and national security.
Sabah has been found to contain rich oil and gas reserves, according to the Singapore-based Facts Global Energy. It is said that significant pipeline projects, to be led by Malaysian companies in Sabah, will bring about the first gas production by May 2015 and power production by November 2015.
Sabah also poses a security risk for both countries because it is allegedly the lair of the al-Qaida-linked regional terror group Jemaah Islamiyah. Hence, Sabah could be used by terrorists as the springboard for a pan-Islamic state.
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 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 sultan’s 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 1989, the Sulu sultan’s heirs had revoked their authorization issued to the Philippine government as their representative. In 2001, another heir sent another demand letter for an increase in lease payments.
PH retains claim
In 2008, President Gloria Macapagal-Arroyo issued “Guidelines on Matters Pertaining to Sabah,” which required any official activity related to Sabah to first obtain clearance from the Department of Foreign Affairs. In 2009, Arroyo signed the new law on the archipelagic baselines of the Philippines, which I sponsored. This law was upheld in 2011 by the Supreme Court, which categorically stated that the Philippines retained its claim to Sabah.
It should be emphasized that the Philippine claim has been supported by no less than the British minister of foreign affairs at the time, Earl Granville. He was negotiating the 1885 protocol and at one point he was replying to the protest of Spain and the Netherlands over the grant of the royal charter to BNBC, which included North Borneo. Granville said that the BNBC charter also “recognizes the grants of territory and powers of government made and delegated by the Sultans in whom the sovereignty remains vested.”
In the further course of negotiations among certain colonial powers, Granville again stated: “The sovereignty in our view is vested in the Sultans and was merely delegated by them to the company by their concessions.”
The Malaysian claim is based on the argument that the original document was a treaty of cession. Malaysia traces its claim to the 1878 Deed signed by the Sulu sultans in favor of the adventurers Overbeck and Dent, members of a syndicate, which was eventually organized into BNBC. It is claimed that the two adventurers entered into the 1878 Deed as representatives of BNBC and thus attained sovereignty over Sabah.
In June 1946, the British Crown and BNBC entered into an agreement, which appears to cede and transfer all the rights, powers and interests of BNBC on North Borneo to the British Crown.
End with nothing
As in astrophysics, 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 proposed “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 the Sulu sultan. In turn, the sultan’s heirs ceded sovereignty over Sabah to the Philippines. Therefore, it is the Philippines that now possesses sovereignty over Sabah.
In contrast to the Philippine claim, Malaysia’s 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 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.
Principle of lease 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 former’s 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.
Principle of ‘effectivités’
In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivités. This is a French term referring to acts undertaken in the exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory.
Not every person can display state sovereignty. Only persons whose acts are attributable to a state can perform an act undertaken in the exercise of sovereignty on its behalf. The acts of private entities are in principle not attributable to a state. Thus, they cannot create a title of sovereignty for a state. In the case of the Europeans Overbeck and Dent, the issue is whether those two persons were allowed to exercise elements of governmental authority.
Under international law, the presence of a population in a territory is not in itself determinative for deciding which state is the holder of the territorial title of sovereignty. But in brief, in a territorial dispute, the legal value of effectivités is to be assessed according to the existence or nonexistence of legal title.
Effectivités undertaken by the Malaysian government do not create a territorial title because Malaysia has no title of sovereignty over Sabah. Because the title of sovereignty over Sabah is held by the Philippines, our title has primacy over contradictory effectivités of Malaysia. The effectivités of Malaysia are unlawful and cannot in themselves create a title of sovereignty.
When we analyze a territorial dispute, we have to painstakingly consider state conduct. Philippine state conduct serves to maintain our right of sovereignty over Sabah. Even if the Philippines has lost control of its territory, the country continues to claim Sabah by issuing protests and by enacting legislation, or by taking relevant conduct regarding Sabah, by which it manifests its intent to remain the sovereign.
Contemporary international law prohibits the use of force. However, some authors claim that as part of the lex lata, there is an unwritten exception, which allows states to protect or rescue their nationals by means of armed forces in the territory of another state. With respect to the Sabah event, I do not subscribe to this exception because no armed attack has been made on Philippine territory. Without an armed attack, there can be no lawful self-defense.
However, I humbly take the position that it is now a rule of customary international law that a limited forcible action, with the legitimate aim of rescuing a state’s own nationals, provides unwritten justification to use armed force in Sabah without the consent of Malaysia. Since 1960, these rescue operations have been a feature of modern state practice. Authorities say, “The opinio juris of the states carrying out the rescue operations would seem to carry enough weight, as to give evidence of an unwritten rule in customary international law.”
Should the Philippines engage in a rescue operation for Filipinos in Sabah, the country should conform to the following preconditions:
1. The lives of Filipinos should be genuinely in danger;
2. Malaysia is unwilling or unable to ensure the safety of the persons concerned (ultima ratio);
3. The Philippines does not pursue any other purpose on the occasion of the operation;
4. The scale and effects of the military force used are adequately measured to the purpose and conditions of the operation. Thus, the impact on the other state’s territory is kept to the absolutely necessary minimum.
The two disputants over Sabah both base their claim on the 1878 Deed signed by the Sulu sultan in favor of two representatives of a British company. Therefore, the end game should be to promulgate a treaty-based regime in Sabah. That is the long-term goal; but the short-term goal should be to extend immediate diplomatic protection to Filipinos in Sabah by means of a fact-finding mission.
Under the United Nations Charter, international law requires the pacific settlement of disputes by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, use of regional agencies or arrangements, or other peaceful means of the parties’ own choice.
Third party inquiry
Under the 1907 Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and fact finding can be used “to facilitate a solution of… disputes by elucidating the facts by means of an impartial and conscientious investigation.” This means that the Philippines and Malaysia should agree on a third party to carry out an inquiry, which should precede any pacific dispute settlement, specifically negotiation, mediation, good offices and conciliation.
Fact-finding commissions have been used by the United Nations and other international organizations to investigate, for example, the involvement of mercenaries in an invasion of the Seychelles in 1981 and the use of chemical weapons in the Gulf War between Iran and Iraq in 1987.
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.
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