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 whomSultan Muaddinrequested 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 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. 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

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 1989, 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 successorin-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 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

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.