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Sabah claim: Philippines lacks legitimacy
Published on: Sunday, July 21, 2024
By: Datuk Roger Chin
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This intricate issue, rooted in the complexities of colonial history, carries significant political and economic weight due to the region's rich oil and gas reserves.
Understanding the historical context, along with additional complexities, is crucial to charting a path towards a lasting resolution.
Historical Background and Legal Context
The territorial dispute over Sabah between the Philippines and Malaysia is rooted in colonial-era agreements and intricate historical claims.
The contention centres on Sabah, located on the northern tip of Borneo. The origins of the dispute trace back to the late 19th century when the Sultan of Sulu purportedly signed a lease agreement with the British North Borneo Company in 1878. However, the legitimacy of this agreement is highly contested.
The Overbeck Agreement and Its Limitations
In 1878, Baron von Overbeck, representing the British North Borneo Company, entered into an agreement with the Sultan of Sulu. This agreement is often cited by the Philippines as the basis for its claim over Sabah. However, several critical points undermine this claim:
- Nemo Dat Quod Non Habet Principle - The legal principle "nemo dat quod non habet" (no one can give what they do not have) applies here.
The claim over Sabah from the Sulu Sultanate is based on a supposed promise made for aiding Brunei’s Sultan Muhiyiddin in the war.
The condition for the cession was that the Sultan of Sulu come to the aid of Sultan Muhyiddin in defeating the rival/previous occupant of the throne, Sultan Abdul Hakkul Mubin.
The civil war lasted from 1661 to 1673 but the Sultan of Sulu never made good on his assurances, resulting in Sultan Muhyiddin refusing to enforce the promise.
As such, the claim of the Sulu Sultanate has been all along a mere claim — without any proper exercise of sovereignty per se compared with the Sultanate of Brunei. No historical evidence or agreements support these claims, undermining the Sulu Sultanate's assertion. Hence, the Sultan of Sulu had no legal standing to transfer or lease the territory.
By all accounts, the parts of Sabah purportedly under the Sulu Sultanate in 1878, the date of the cession, were uninhabited except for a few fishing villages and a few scattered nomadic tribes in the hinterland.
Partial Territory Agreement - The Overbeck agreement only covered parts of Sabah, not the entire region. This limited scope further weakens the basis of the Philippine claim over the entire territory of Sabah. - Historical Context – No historical records indicate that the Sultan of Brunei had sold or ceded the territory of Sabah to the Sultan of Sulu. Any subsequent agreements by the Sultan of Sulu were thus without merit.
The Formation of Malaysia and the UN-Recognized Referendum
When Malaysia was formed in 1963, incorporating Sabah, the Philippines lodged a formal claim, asserting that Sabah rightfully belonged to the Sultanate of Sulu and, by extension, to the Philippines.
Malaysia, however, maintains that the territory was legitimately ceded to it by the British. The following points underscore Malaysia's legitimate claim:
- UN-Recognized Fact-finding Mission - A referendum was conducted in Sabah under the supervision of the United Nations in 1963. The results indicated a clear preference among Sabahans to join Malaysia. This democratic process validated Malaysia’s sovereignty over Sabah.
- Cobbold Commission Report - The Cobbold Commission report, which facilitated the formation of Malaysia, included consultations with representatives from Sabah. This process can be viewed as another form of a referendum, reinforcing Sabah’s integration into Malaysia.
- International Recognition - Malaysia’s sovereignty over Sabah has been widely recognized by the international community, further solidifying its legal and political standing.
Payment Controversy and Arbitration
For years, Malaysia made annual payments to the heirs of the Sultanate of Sulu, as stipulated in the 1878 agreement. This practice continued until 2013 when Malaysia ceased payments following an unsuccessful armed incursion by one of the heirs to reclaim Sabah.
This cessation led to arbitration in a French court, resulting in a US$15 billion ruling against Malaysia. However, the Paris Court of Appeal ruled in 2023 that the arbitration tribunal had no jurisdiction, effectively nullifying the award and supporting Malaysia’s stance against the claim.
Recent Developments and Political Implications
The recent submission by the Philippines to the United Nations, claiming entitlement to an extended continental shelf in the Western Palawan region of the South China Sea, has reignited tensions.
Malaysia categorically rejected this filing, asserting that the extended continental margin in the submission was projected from the baselines of the Malaysian state of Sabah. This diplomatic move has brought the Sabah dispute back into the spotlight, coinciding with the visit of Malaysia’s Foreign Minister Mohamad Hasan to the Philippines.
Economic and Strategic Importance
Sabah is rich in natural resources, particularly oil and gas, making it a valuable economic asset. The dispute has significant economic implications for both nations. Additionally, the strategic location of Sabah adds to its geopolitical importance, influencing regional security dynamics.
Path to Resolution
To resolve the Sabah dispute comprehensively and conclusively, the following steps are recommended:
- Recognition of Sovereignty - Based on historical agreements, legal principles, and international recognition, it is clear that Malaysia has a stronger claim to Sabah. Acknowledging Malaysia’s sovereignty can pave the way for peaceful resolution and cooperation.
- Diplomatic Negotiations - Engaging in diplomatic negotiations to address the concerns of both nations is crucial. This includes discussing economic cooperation, resource sharing, and other bilateral agreements that can benefit both Malaysia and the Philippines.
- Referendum and Democratic Processes - While a new referendum may not be necessary given the UN-recognized one in 1963, reaffirming Sabah’s status through another democratic process can help legitimize Malaysia’s sovereignty and address any remaining concerns. Ensuring transparency and inclusivity in this process is essential.
- Economic and Developmental Cooperation - Both nations can explore avenues for joint development projects in Sabah, focusing on infrastructure, education, and healthcare. This can create a win-win situation, promoting economic growth and improving the quality of life for the people of Sabah.
- Transparency and Accountability - Ensuring transparency and accountability in resource extraction and governance in Sabah is essential. Malaysia should address any concerns regarding the exploitation of resources and engage in fair and equitable practices. This can build trust and strengthen bilateral relations.
- Legal Clarifications - Clear legal clarifications and reaffirmations of past agreements and rulings can help settle the dispute. This includes recognizing the limitations of the Overbeck agreement and the principle of "nemo dat quod non habet."
A Future of Shared Prosperity Through Mutual Understanding and Respect
The Sabah dispute is a complex issue with deep historical roots. By recognizing the complexities of the claim, including the potential limitations of the Overbeck Agreement and the legitimacy of the UN-recognized referendum, a path towards a lasting resolution becomes clearer. Prioritizing mutual understanding, open communication, and collaborative development projects can pave the way for a future of shared prosperity and peaceful coexistence for Malaysia, the Philippines, and the people of Sabah.
The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express.
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