Sabah, status quo



I wish to put rhe record straight on the reasons why Sabah is part of  Federation of Malaysia.

First of all let it be clear that we dispute the Philippines account on its ownership of Sabah as derived from Sulu Sultanate authority as defective, one sided and without merit. However going into the account by account details of rebutting Philippines claim will be voluminous and inappropriate in this forum. Unless one is throughly familiar with the intricacies of historical account, treaty and point of law, one is best advise to avoid getting into the debate with the Philippines side/agent.

I would therefore provide a point of arguement that would render ALL of Philippines arguement obsolete and irrelevant.

The following is an extract from the judgement made by the International Court of Justice in referrence to the Philippines request to intervene in the case of Malaysia versus Indonesia on the ownership of Pulau Sipadan and Ligitan.

Some back ground:

Intervention by the Philippines is requested in relation to a case regarding international law (between Indonesia and Malaysia), brought before an international Court, with the alleged concern on the part of the Philippines that the consequences of this particular case might affect its own legal interests. The Philippines initially filed a request on 22 February 2001 to be given copies of the pleadings and documents of the case, but this request was found inappropriate by the Court and denied. On March 13, 2001 the Philippines submitted an application to intervene in the case, on the basis that the outcome of the case might have “direct or indirect bearing on the matter of the legal status of North Borneo”, the latter of which is of the property of the Philippines; yet this application not submitted until more than two years after the known
beginning of the case.

Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan
(Indonesia v. Malaysia)
Application by the Philippines
for Permission to Intervene
Judgment of 23 October 2001

… I wish to explicate a legal basis for the Court’s decision which, while consistent with it, has not been advanced by the Court, perhaps because it was insufficiently advanced by the Parties, although discussed in passing by Malaysia (CR 2001/2, p. 56, para. 10 (Lauterpacht)) and the Philippines (CR 2001/3, p. 23, para. 14 (Magallona)).

A. “I shall endeavour to demonstrate why that legal basis is of some importance and why the Court need not have been deterred from making this clear.”

B. “The point of law is quite simple, but ultimately basic to the international rule of law. It is this: historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot – except in the most extraordinary circumstances – prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.”

[pp. 655-658 S.O. Franck] 9. Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial titleerga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a “people”into this traditional legal scheme, notably the right of peoples to self-determination, fundamentally alters the significance of historic title to the determination of sovereign title.

10. Previous judgments of this Court (in particular, its Advisory Opinion of 26 January 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, pp. 31-32, paras. 52-53 and its Advisory Opinion of 16 October 1975 in Western Sahara, I.C.J. Reports 1975, pp. 31-33, paras. 54-59) contribute to and recognize the development of the right of non-self-governing peoples to self-determination which “requires a free and genuine expression of the will of the peoples concerned” (Western Sahara,ibid., p. 32, para. 55). The Court recognized in the Namibia case that, “the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” (I.C.J. Reports 1971, p. 31, para. 52). In the case concerning East Timor (Portugalv. Australia), the Court recognized the principle of self-determination to be “one of the essential principles of contemporary international law” (I.C.J. Reports 1995, p. 102, para. 29).

11. The decisions of this Court confirm the prime importance of this principle of self-determination of peoples. The firm basis for the principle is also anchored in universal treaty law, State practice andopinio juris. Article 1, paragraph 2, of the United Nations Charter indicates that one of the purposes of the United Nations is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The principle also finds express and implied reflection in other provisions of the Charter, namely Article 55, Article 73 and Article 76 (b). Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights provides that “[a]ll peoples have the right of self-determination”, and emphasizes in Article 1 (3), that “States Parties to the present Covenant . . . shall respect [the] right [of self-determination], in conformity with the provisions of the Charter of the United Nations”.

12. This treaty law has been affirmed, developed and given more tangible form by numerous resolutions of the General Assembly, which have consistently received broad support. General Assembly resolution 637 (VII), adopted on 16 December 1952, was an early recognition that “every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self-determination”, a right which was stated to be a “prerequisite to the full enjoyment of all fundamental human rights”. The“Declaration on the Granting of Independence to Colonial Countries and Peoples”, General Assembly resolution 1514 (XV), adopted without dissent on 14 December 1960, is regarded as fundamental to the process of decolonization. It is applicable to all “territories which have not yet attained independence” and establishes that “[a]ll peoples have the right to self-determination” while insisting that “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.In General Assembly resolution 1541 (XV), adopted with only two dissents on 15 December 1960, the General Assembly contemplated more than one method of self-determination for non-self-governing territories, including “[i]ntegration with an independent State”. General Assembly resolution 2131 (XX), “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty”, adopted by 109 countries without dissent on 21 December 1965, declared that, “[a]ll States shall respect the right of self-determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms”. The principle of self-determination was further included among the “basic principles of international law” set out in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, adopted by consensus as the Annex to resolution 2625 (XXV) on 24 October 1970. According to this document, “all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter” (emphasis added).

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 31 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, 18th Session, UN Doc. No. A/PV.1219.)

14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 (e) Non-Self-Governing Territory (Note by the Secretary-General, Political and Constitutional Information on Asian Territories under United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization jurisdiction (see Yearbook of the United Nations, 1964, pp. 411-435, which omits North Borneo from the Committee’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.

16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self-determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self-determination. The Court cannot be a witting party to that.

As such and in accordance with international law, the ownership and sovereignty of Sabah is beyond dispute. It does not matter where the Philippines derives it claim from. The Sulu on the other hand had been generally accepted to have ceased to exist, not only from historical point of view but also in accordance with the Philippines constitution.

17. “In so far as the Philippines has claimed a legal interest in protecting its claim to sovereign title on the basis of the historic rights of the Sultan of Sulu, that legal interest, however fascinating historically, has no modern purchase. It is, beyond reasonable disputation, barred by a legal principle firmly established in modern texts, judicial decisions and State practice. There is no point, therefore, in encouraging its further ventilation…”In para A, it is understood that the court imply that it should not be deterred from making the issue of ownership of Sabah clear as it form the basis for the Philippines request to intervene.

In short, what matter is para A, B, 15 and 16.

If you need to propagate or dissemminate this information in shorter variant, do extract the above mentioned para

Do bear in mind that the Kiram guy is one but at least 10 other claimant of heirs of ‘Sulu Sultanate.’ If anything he is one of the weaker claimant, the Tausug people has elected another ‘Sultan’ in 2009. This Kiram guy wanted to curry favour with Manila in order to sideline the other claimant. If you have not notice, he keep saying that Sabah belong to the Philippines. Other existing claimant to the Sultanate insist Sabah is part of Sulu Sultanate and many of them dont even consider themselves as Filipino. Of course there is the Nur Misuari, Anuwar and Gloria Macapagal Arroyo triad issue that need further examination – but that is a story for another day.

In order for Sabah and Malaysia to further strengthen their case and make their stand clear to the international community, the Philippines, the Tausug people and their so called “Sulu Sultan”, DUN Sabah should take the following action immediately:

a. Reaffirm their commitment to the 1963 referendum.

b. Declare that Sabahan do not wish to be govern, administer or assosiated in any way with the Philippines, Sulu, its derivatives and personalities or any other form of government except those of The Government of Malaysia.

c. Demand that the Philippines citizen or people from Philippines territory to stop their intusion into Sabah.

d. Demand that the Philippines government to take immediate and effective measures to institute governance and control over their citizen from threatening the security, way of live and well being of Sabahan.

e. Declare that the claimants of Sulu Sultanate and its heirs are persona non grata to Sabah.

The government of Malaysia on the other hand should recommend to the United States and international community to label the Kiram and his Sulu band as Terrorist Organization.

Fellow Malaysian that follow this blog, you are most welcome to extract/copy and disseminate this information as you see fit.

*This article is a contribution of an avid reader of the blog

Published in: on March 3, 2013 at 22:00  Comments (5)  

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5 CommentsLeave a comment

  1. I like to add some more info.

    1.This “land” was being given by Sultan Brunei to sulu..but the region of the land was ONLY for sabah east! So how come the WHOLE sabah could be claimed for them or any status quo?

    2.The ancestors of sulu gave their region of sabah with the word of “selagi ada bulan bintang”. so as long as these moon and stars are exist, they couldn’t do any claim anything.

    Hence, any claim for sabah from any sulu or philipine are bullshit!

    p/s: if those mangkuk ayun still in such stubborn..there are 2 main things that they need to do:

    1.go to their ancestors grave who made the stupid promises. curse them la. It’s clearly that they lost the small region bcuz of them!

    2. bomb the moon & shoot all the stars that exist..only then they could claim the sabah east NOT the whole one.

    btw, why they didn’t go for war to sabah since ages? that time sabah still so poor and under development. how brainy they are right..well, it’s easy and more pleasant..if they come there and get all the “good” things without spending any hardship on thinking and take the action how to manage & develop the “state”. Dasar plemalas + bodoh + lanun!

  2. I sincerely hope that all those YB and people in authority read and take heed of this.

    Accompanyig comment from fellow forumer nick-named “Postgrad” concerning the use of the term “cessetion money vs rental payment” should provide enough points to debunk the Philippines and Sulu “what-ever-their-name-is” arguement.

    If they continue to debate, or worst challenge Malaysia on this issue, it is clear that they have no respect to self determination, and by extension democracy. But then again Philippines is well known for the lack of rule of law, pretty much failed government and corruption.

    Good example of this is the fact that dispite the president promising to bring “the full force of law” over ONE WEEK ago on this terrorist leader – Kiram (yes, he should be called terrorist as it fit the definition), that guy still roam around happily giving press conferrences and instruction to his band of bandits in Sabah. This is clearly in defiant of the Philippines President, yet Aquino regime demonstrated that they are either unable or simply unwilling to take any action. So much for their aspiration of regional stability and commitment to Good Governance (refer to Philippines National Security Policy).

    I would also like to recommend that the government to pressure the Philippines government to act on their word and show sincerity to their commitment to peace and regional stability. As for the terrorist leader Kiram, we should pursue for an international arrest warrant to make himpay for his crime.

    If they refuse, keep this whole insident in mind when we chair ASEAN FMM in 2015 – they deserve another Cambodia!

  3. In the midst of the Philippines President’s responsible and laudable attitude and action concerning the infiltration of the Kiram followers into Sabah, I think what needs be done is to keep on whacking the infiltrators and, where possible, persuading them in any fitting language, tone or mode, to return to their country.

    Many of us are not familiar with legal arguments, especially of the International Court of Justice. The very fact that the Philippines Government has been and is friendly to Malaysia, especially in the recent agreement on the Bangsamoro issue on which the Malaysian Prime Minister has given his assistance, all we should do as loyal and patriotic citizens must be to say, shout, plead and whatever else suitable in getting the Kirams of all kinds to call back those infiltrators to Sulu. Note that there are many kinds of them Kirams, many claimants and proclamations of Sultanship, more than a dozen Sultans of Sulu have been variously reported in Malaysian, Filipino, even US, media.

    Note also that the Philippines President has asked the relevant authorities in his country to update the studies on the matter of who is the valid heir and the legally constituted Sultan of Sulu, if any really exists under the present circumstances. That wording “legally constituted” may be a misnomer as the succession must have been based on their customs and traditions and have been disputed many times over such a long period of time such that there are so many “Sultans of Sulu” now.

    That the Malaysian government pays cessation money to whoever receives it does not mean he is the Sultan of Sulu having sovereign and territorial rights over Sabah or parts thereof.

    • Basically it’s a matter of friendly attitude between the leaders of the countries involved and we appreciate that that exists now between Malaysia and the Philippines.

      We should also appreciate that such an attitude also exists between the leaders of Malaysia and Thailand as plans are now under way for talks between the Thailand government and representatives of the Muslims in south Thailand. And the Malaysian Prime Minister is helping facilitate those talks.

      We must shout out Bravo to the spirit of ASEAN and the responsible and friendly spirit of the leaders. Even Burma is now changing, many thanks also due to the ASEAN spirit of co-operation and friendly feelings.

      I am damn proud of the ASEAN spirit.

  4. Very good points – pls pls disseminate further – maybe submit to a newspaper??

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