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ON THE SABAH CLAIM

THE UP FORUM ROUNDTABLE DISCUSSION ON THE SABAH CLAIM

Posted on August 28, 2013 by UP Forum in UP Forum

Q:How do we resolve the Sabah issue? What concrete measures are necessary to achieve a lasting
solution to this problem?

mds-new-croppedMiriam Defensor Santiago, LLM, JSD

Senator

Republic of the Philippines

In 1878, the sultan of Sulu entered into a deed of pajak over Sabah, with Austrian Gustavus Baron de
Overbeck and Englishman Alfred Dent, who were representing 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 Philippine claim is based on the argument that the 1878 Deed was a treaty of lease.

The Malaysian claim is based on the argument that the original document was a treaty of cession. It is
claimed that Overbeck and Dent entered into the 1878 Deed as representatives of the British North
Borneo Co. (BNBC), and thus attained sovereignty over Sabah. The BNBC turned over sovereignty to the
British crown, which in turn devolved to Malaysia.

Resolving the Sabah Issue

In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have
considered the principle of effectivits. This is a French term which refers to acts undertaken in the
exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory.

Under international law, the presence of a population in a territory is not in itself determinative in
deciding which state is the holder of the territorial title of sovereignty. But in brief, in a territorial
dispute, the legal value of effectivits is to be assessed according to the existence or not of legal title.
Effectivits 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 effectivits of Malaysia. The effectivits 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 Philippines continues to claim Sabah by issuing protests and by enacting legislation, or
by taking relevant conduct regarding Sabah, by which the Philippines manifests its intent to remain
sovereign.

Pacific Settlement of the Dispute

The end game to achieve lasting peace in Sabah is 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, as
follows:

Art. 33. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.

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 ofdisputes 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.

A 1991 UN Resolution defines fact-finding as: Any activity designed to obtain detailed knowledge of the
relevant facts of any dispute or situation which the competent UN organs need in order to exercise
effectively their functions in relation to the maintenance of international peace and security.

My humble recommendation is that the disputants should settle the dispute in the first instance through
the method of inquiry and fact-finding. This method does not resolve the investigation or application of
the rules of law. What actually happened during the Sabah event last March 2013? Does the resort 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.

Sen. Defensor-Santiago earned her Bachelor of Laws from the UP College of Law. Email her at
mdsmedia@miriam.com.ph.

Q:How do we resolve the Sabah issue? What concrete measures are necessary to achieve a lasting
solution to this problem?

Photo 4-croppedLeticia Ramos-Shahani, PhD

Professor, Miriam College

Senator, Republic of the Philippines (1987-1998)

Former Deputy-Minister for Philippine Affairs and UN Assistant Secretary-General for Social and
Humanitarian Affairs

l) The President of the Philippines and the Sultan of Sulu must first have a frank and honest round of
confidential discussions, assisted by personalities who should have no agendas to seize power or
accumulate wealth, and motivated purely by patriotic goals.

The President must realize that the Sultan of Sulu has legitimate proprietary rights over Sabah which
require deep knowledge of the history of international law to understand, since proprietary rights are
not the equivalent of sovereignty. Hence, the President has the duty to protect the Sabah claim within
the limits of proprietary rights since the Sultan of Sulu and his followers are Filipino citizens.

On the other hand, the Sultan of Sulu has to accept that he cannot just re-take Sabah which is now part
of the Federation of Malaysia (a member of ASEAN and the United Nations), without disastrous results.
His claim to Sabah, overtaken by other historical events, must be pursued through the rule of law, with
the help of the Philippine Government.

A united, negotiated position between the GRP and the Sultanate of Sulu should result from these talks.

(2) The issue of Sabah will take a long time to resolve: beyond the PNoy administration and its current
priority on the Mindanao Peace Agreement, dependent as the Sabah issue is, not only on basic
principles but on volatile political issues, among them the rise and fall of political personalities; changes
in government administrations; etc. The long-term goal of regaining the whole of Sabah or part of it
should not be sidetracked by intervening events.

(3) The drawing of the baselines of the Philippine Archipelago, the West Philippine Sea and the Sabah
claim are interrelated. In the archipelagic baselines law submitted to the UN, Sabah was not included
but with the footnote in the law that its non-inclusion did not affect our claim to Sabah.

(4) In order to achieve a disciplined, systematic and sustainable system to nos. 1-3 above, the following
are required:
(a) It is the President and/or his Office who should make the major pronouncements on Sabah and all
other matters on territorial disputes. A unit in his Office should coordinate the positions of all
government offices;

(b) The National Library should be the sacred repository of all documents relating to the Sabah issue
with a controlled and systematic access to these documents. The Departments of Foreign Affairs and
National Defense should have copies of these documents to which there should be limited access.
Several of these documents are scatteredwhere? For instance, what happened to the contents of the
tampipi of the late Ambassador Eduardo Quintero filled with documents on Sabah he copied from the
Library of Seville?

(c) The DFA should make a complete record of its decisions and actions on Sabah from the very
beginning. There was a North Borneo Unit in the DFA for a long time until the Marcos years, when the
heirs of the Sultan, identified by the Mackaskie decision, collected their share of the rental money paid
by the Malaysian Government.

I accompanied the Philippine representative to the UNGA when he officially protested the reliability of
the referendum authorized by the Cobbold Commission concerning Sabahs inclusion in the Federation
of Malaysia. Sad to say, his performance was feckless and unimpressive; no one in the hall was paying
attention to what he was saying. Foreign Secretary Narciso Ramos, among others, in l965 made a major
statement before the UNGA on the Philippine claim to Sabah.

(d) There should be one ambassador in the DFA appointed to deal only with territorial disputes, but who
should not be assigned abroad but should remain permanently in the home office although he/she can
travel outside the country. He/she should be treated like a career ambassador with powers to negotiate
for the President.

(e) The DND should make a record of all the fighting and violence which has taken place over Sabah
the Jabidah massacre, the recent invasion of Sabah, etc.

(f) Reputable scholars designated by the UP and other institutions which have strong international
studies departments should have access to documents, statements etc. on Sabah so that their
independent advice and opinions can be sought concerning the steps to be taken, the interpretation of
actions of leaders, the wording of important pronouncements, memos, press releases etc.
(g) The government and private entities above can be collapsed when needed to form a reliable think
tank to be of permanent service to the country and the Filipino people.