12 reasons why Philippines can't claim Sabah

The Malaysian Bar is extremely concerned by reports of the armed intrusion by foreign elements and ongoing conflict in the areas of Lahad Datu and Semporna, in Sabah.  

We are deeply saddened by the deaths of eight Malaysian police personnel, and extend our deepest condolences and heartfelt sympathies to their families and loved ones.

We salute our fallen heroes who have paid the highest price in defence of our nation and territory. Our thoughts and prayers also go to members of our security forces who are now in the frontline of this conflict.  

The Malaysian Bar expresses its support for the Malaysian authorities in its continuing efforts to restore law and order in the affected areas.  

As an independent nation, Malaysia has a sovereign right to ensure recognition and respect for the territorial integrity of its international borders.

As the conflict continues, we call on all parties to take all necessary action to minimise any further injury and loss of life.

The International Court of Justice, in the course of adjudicating a territorial dispute between the Governments of Malaysia and Indonesia over the islands of Ligitan and Sipadan off the coast of Sabah, and in delivering its decision on 17 December 2002, had set out the antecedents and history pertaining to the territory, and which effectively recognised the rights and sovereignty of Malaysia over the state of Sabah and its surrounding islands.

Sultanate had relinquished its rights

In essence, these antecedents show that the Sultanate of Sulu had, by its several actions and by various separate instruments between 19 April 1851 and 26 June 1946, relinquished and ceded all of its rights, interests and dominion over what was previously referred to as North Borneo (now known as the state of Sabah, Malaysia).  These various instruments are:

1) The Act of Re-Submission between Spain and the Sultan of Sulu dated 19 April 1851, which was confirmed by the Protocol dated 22 July 1878, whereby the island of Sulu and its dependencies were annexed by the Spanish Crown;

2) The Cession and Agreement dated 22 January 1878 between the Sultan of Sulu, and Mr Alfred Dent and Baron von Overbeck as representatives of a British company, whereby the Sultan of Sulu granted and ceded to the latter all of his rights and powers over the mainland of the island of Borneo;

3) The Commission (report) dated 22 January 1878 whereby the Sultan of Sulu appointed Baron von Overbeck the “Dato Bëndahara and Rajah of Sandakan”, and ceded all of the Sultanate's rights to Baron von Overbeck as the “supreme ruler over the said dominions”;

4) Baron von Overbeck and Mr Alfred Dent in turn relinquished all their rights to a British company, later the British North Borneo Company;

5) The Protocol dated 11 March 1877 between Spain, Germany and Great Britain;

6) The Protocol dated 7 March 1885 between Spain, Germany and Great Britain whereby, inter alia, the Spanish Government relinquished to the British Government all claim of sovereignty over the territories of the continent of Borneo and its islands;

7) The Agreement dated 12 May 1888 between the British Government and the British North Borneo Company for the creation of the State of North Borneo;

8) The Treaty of Peace of Paris dated 10 December 1898 between Spain and the United States of America whereby Spain ceded the Philippine Archipelago to the United States of America;

9) The Confirmation of Cession dated 22 April 1903 between the Sultan of Sulu and the British Government expanding the scope of the Cession and Agreement of 22 January 1878 between the Sultan of Sulu and Mr Alfred Dent and Baron von Overbeck;

10) The Convention dated 2 January 1930 between the United States of America and Great Britain delimiting the boundary between the Philippine Archipelago and the State of North Borneo;

11) The Agreement dated 26 June 1946 between the British North Borneo Company and the British Government whereby the British North Borneo Company relinquished and transferred all of its interests, powers and rights in respect of the State of North Borneo to the British Crown, whereby the State of North Borneo became a British colony.

12) The Agreement dated 9 July 1963 between the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore relating to Malaysia, which entered into force on 16 September 1963, whereby the colony of North Borneo was to be “federated with the existing States of the Federation of Malaya as the [State] of Sabah”.

Although the Philippines was not a party to this litigation before the International Court of Justice — it did apply to intervene, but the application was rejected — it is clear from this judgment that the Sultanate of Sulu, even if such an entity were to legally exist today, has no subsisting legitimate claim to Sabah.  

In any event, as a matter of post-colonial self-determination, the people of Sabah voted overwhelmingly to join Malaysia in a referendum held in 1962, which was organised by the Cobbold Commission.

Respect human rights

The Malaysian Bar thus calls upon the Malaysian Government to continue its efforts to defend its international borders and territory, protect its citizens, and apprehend the perpetrators of these acts of armed violence.

In doing so, we nonetheless call upon the Malaysian Government to take appropriate and immediate steps to resolve the conflict in a peaceful manner to avoid the further use of arms and loss of limb or life.

Just as Malaysia is insisting on the respect for its sovereign rights under international law, as is proper, it would also be correct for the Malaysian Government to honour and maintain its commitment to international humanitarian law and international human rights standards in its conduct of the conflict and treatment of any persons detained as part of the conflict, and to accord such persons due process of the law.

It is clear that there exists a serious threat to national security in the areas of conflict in Sabah, and that there are reports that the authorities have arrested 79 persons under the Security Offences (Special Measures) Act 2012.

We expect that the due process of the law shall be observed and accorded to these arrested persons.

We ask the Malaysian authorities to take all necessary measures to protect and provide for the safety and well-being of civilians caught in the conflict zone, bearing in mind that these involve the elderly, women and children.

They should be provided with safe passage to non-conflict zones and be provided with access to adequate food, shelter, medical assistance and protection. 

We also call upon the said authorities to ensure that all combatants, friend or foe, are treated humanely, and provided with the necessary medical assistance and treatment.

As we seek to assert our rights and protect our sovereignty and territorial integrity, we must continue to conduct ourselves with a strong sense of dignity and professionalism, with due observance of our own laws as well as international laws and standards.

It is our conduct and observance of the law and human rights in the face of adversity that will differentiate us from those who would seek to threaten us and commit acts of aggression against us.

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The writer is the vice-president of the Malaysian Bar.