International Court of Justice on Sabah

Posted on March 19, 2013

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To all misguided Filipinos and Malaysians who keep on blabbering that the ICJ had already ruled against Sulu/the Philippines re Sabah, here are two articles written by Joseph G. Lariosa that they should read:

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Obiter Dictum in ICJ  On Sabah Case May Save The Day for PH

JGL Eye Column

By JOSEPH G. LARIOSA

(© 2013 Fil Am Extra Exchange)

CHICAGO (FAXX/jGLi) – If the 100 armed men holed up in the village in the eastern Malaysian state of Sabah are really members of the “royal army” of the Sultanate of Sulu to claim a promised land, the Philippine government may appeal to them to lay down their arms and leave peacefully.

But the Philippine government should take advantage of the opportunity by assuring them of its help by reviewing its Sabah claim before the International Court of Justice.

If the armed men are Filipinos, that is only the second time that a group of Filipinos were trying to forcibly re-take Sabah from Malaysia. In 1968, it was reported that President Marcos was training a team of saboteurs on Corregidor to infiltrate Sabah but the attempt was aborted.

First of all, if the Philippines has the wherewithal to invade Sabah, there is no assurance of success just like the failed Bay of Pigs Invasion of Cuba by the United States.

Secondly, when push comes to shove, in the dispute between the Philippines and Malaysia over Sabah, the United States has no option but to side with the Philippines because in 1906 and in 1920, and as late as July 10, 1946, less than a week after the Philippines was granted Independence by the U.S., the U.S. had reminded Great Britain, which had dominion over what would later become Malaysia that Sabah, earlier known as North Borneo, is not owned by Great Britain but by the Philippine Sultanate of Sulu.

And thirdly, when the International Court of Justice rejected the application of the Philippines to claim Sabah in 2001 to intervene in a dispute between Indonesia and Malaysia for possession of Sabah’s Pulau Sipadan and Pulau Ligitan, its ruling against the Philippines was a mere obiter dictum. In that dispute, the ICJ ruled in 2002 for Malaysia because of Malaysia’s effective occupation of Sabah. But Indonesia does not have a Sultanate of Sulu as its claimant, unlike the Philippines.

In legal parlance, an obiter dictum is merely a statement made by a judge in the course of his judgment, which may not precisely be a relevant issue before him. It has no binding authority. It is a by-product of the original judgment. It is merely a remark or opinion of the judge.

“RATIO DECIDENDI”

On the other hand, the same ruling is considered a “ratio decidendi” against Indonesia and for Malaysia as the ICJ applied the “rule of law” based on the facts of the case or applied the “rule, which the court regarded as governing the case.”

In other words, if the Philippines were to revive its case directly against Malaysia before the ICJ, if the ICJ will use “ratio decidendi,” not obiter dictum in its ruling, the Philippines can get a different ruling from Indonesia’s claim against Malaysia.

In “ratio decidendi,” the Philippines can invoke its own evidence and merits of its case, and if the court gives the Philippines its day in court, I believe, the heirs of the Sultanate of Sulu and its “royal army” will no longer disturb the ruling and the heirs of the Sultanate of Sulu will just cede peacfully Sabah to Malaysia if the Philippines gets an adverse ruling.

Without giving the Philippines its due process, the ICJ’s obiter dictum against the Philippines will not appease the heirs of Sultanate of Sulu and by extension the Philippine government.

That is why I agree with the stand taken by former University of the Philippines Professor Nur Misuari, head of the Moro National Liberation Front, urging the Philippine government to pursue its dormant claim to Sabah.

During negotiation before ICJ, it is going to be shown that the perpetual amount of lease now being paid by the Malaysian government to the heirs of the Sultanate of Sulu in the amount of 6,300 Malaysian ringgits (US$1,500 or 63,000 Philippine pesos) a year is really an insult, if not indolent. It is merely a drop in the bucket to the agreement signed in 2011 by Sabah government’s Petronas (Malaysian government oil and gas company) and Shell for a 30-year production sharing contract for enhanced oil recovery projects in offshore Sarawak and Sabah. According to a Petronas press release, “If (the deal is) realised, around 765 million barrels of oil reserves are expected to be recovered through the improvement to the recovery efficiency of the fields, translating into additional production of 90,000 to 100,000 barrels of oil per day.” It means a mouth-watering income of US$10-million to US$11.2-million a day at current oil price of US$112 per barrel.

Perhaps, the heirs of the Sultanate of Sulu could argue before the ICJ that they may not be able to effectively occupy the whole state of Sabah but they are entitled to royalty to any oil and gas exploration as a form of rental payment.

I spoke to one of the heirs of the Sultanate of Sulu, who just retired from her job from University of Wisconsin in Milwaukee, who told me her relatives want to have a piece of the pie of the income from Sabah’s oil and natural resources before they come into an agreement. She also introduced to me to two of her brothers, who are also employed in the Midwest, when I met them in Chicago,Illinois, last year.

NORTH BORNEO HIH COURT RULED FOR HEIRS OF SULTAN OF SULU

A ll the historical data point to the heirs of the Sultanate of Sulu as the owners of Sabah. Nobody disputes this.

Even the Chief Justice C.F.C. Macaskie of the High Court of North Borneo issued a ruling in 1939, saying the heirs of Sultan of Sulu are entitled to the “cession money,” following the death of Sultan of Sulu Jamalul Kiram II in June 1936, who was childless. The propriety claimants (Dayang Dayang Hadji Piandao and eight other heirs) were awarded the “cession money” as proof of Sultan of Sulu’s ownership of the said property. The ruling was the basis of the payment of annual rental of Sabah amounting to 6,300 Malaysian ringgits per year (U.S.$1,500 or 63,000 Philippine pesos).

But what I dispute was the dismissive demeanor of Malaysia towards the Philippine claim that the dispute is a “non-issue” as there is no desire from the actual people of Sabah to be part of thePhilippines or of the Sutanate of Sulu.

Really?

Did the Malaysian government ever allow the heirs of the Sultanate of Sulu to talk to their tenants in Sabah to find out their sentiments if they were really against the Sultanate by way of a referendum for the purpose? Did the Malaysian government allow the Sultanate air time in mass media in Sabah to explain to their tenants that because they are residing on a piece of land owned by a Filipino Sultanate of Sulu, they are supposed to pay rental directly to their landlord – the heirs to the Sultanate of Sulu – not to a third party or middleman such as the Malaysian government?

If I were the heirs to the Sultanate of Sulu while they are waiting for the ruling of the ICJ, I am not going to encash the 6,300 Malaysian ringgits to protest and humiliate the Malaysian government just as Fidel Castro refused and refuses to encash the US$2,000 annual rental payment of the U.S. to use the Guantanamo U.S. Base in order to humiliate the U.S. into giving up the perpetual rental under the Platt Amendment. By the way, even after the U.S. increased  the rental to the Guantanamo Naval Base to peg it to current inflation to US$14,000 annually, Cuba will still not encash the rental payment check.

Come to think of it, when the Philippines leased the Clark Air Base and Subic Base to the U.S., which account for 245 square miles land area, the U.S. was paying $200-M annual rental to the Philippine government. While Sabah, which has 28,430 square miles, or 116 times bigger than the U.S. Bases, the Malaysian government is only renting Sabah for a song! # # #

Editor’s Note: To contact the author, please e-mail him at: (lariosa_jos@sbcglobal.net)

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Opinion  OP-ED  Joseph G. Lariosa 

ICJ Rules Out Malaysia’s Claim On Sabah

CHICAGO (FAXX/jGLi) – F.B. Harrison is one of the major streets in Metro Manila but I wondered why. I only learned lately from a fellow Filipino cyberfriend, Jose Sison Luzadas, that when the Philippines’ seventh civilian American Gov. Francis Burton Harrison died in Flemington, New Jersey in 1957, he left a will that his remains be repatriated to the Philippines and be buried at the Manila North Cemetery in La Loma.

When he was no longer the U.S. Governor General, Harrison became an advisor to Philippine Vice President and Foreign Affairs Secretary Elpidio Quirino. He presented to Quirino on Feb. 27, 1947 a copy of the Sabah Lease Treaty document in Malay language written on Arabic script translated by American anthropologist H. Otley Beyer of the University of the Philippines. Austrian Baron von Overbeck and British lawyer Alfred Dent told the Royal Colonial Institute on May 12, 1885 that the agreement they obtained from the Sultan of Sulu on Jan. 22, 1878 was for the lease of North Borneo and did not forfeit the Sultan’s sovereign rights.

 On June 26, 1946, the British North Borneo Company entered into an agreement with the British Government, transferring its interests, powers and rights over to the British Crown to become State of North Borneo. It became a British colony. Harrison called this arrogant and baseless move as British “political aggression.” He advised the soon to become young Philippine Republic to take the matter up before the United Nations.

It caught the U.S. off-guard to protest the British violation of the 1907 Exchange of Notes between the U.S. and Great Britain and the subsequent Jan. 2, 1930 Convention. According to the International Court of Justice in a 2002 ruling in the dispute between Malaysia and Indonesia over the islands of Ligitan and Sipadan, the 1907 Exchange of Notes was “a temporary arrangement between Great Britain and the U.S. that did not involve a transfer of territorial sovereignty (but) merely provided for a continuation of the administration by the British North Borneo Company of the islands situated more than three marine leagues from the coast of North Borneo.”

NO NEED FOR COBBOLD COMMISSION

In rejecting a conditional surrender of the Sultan of Sulu’s Royal Army, who want Malaysia to settle the Sabah dispute, Malaysian Prime Minister Najib Razak ruled out any negotiation on the dispute “that has been determined legally as far back as 1878 and subsequently by the referendum conducted by the Cobbold Commission ahead of the formation of Malaysia.”

The Prime Minister might not have been told by his advisers that referendum for self-determination as far as Philippines’ claim to Sabah is concerned is out of the question.

Based on the Indonesia-Malaysia dispute, the ICJ ruled that “effectivities” and sentiments of the people in the area for self-determination will only be at play if parties in the dispute do not have “treaty-based title” to support their claim. Both Indonesia and Malaysia did not have any documentary evidence to show in their claims. So the court turned to “effectivities” in coming up with the decision in favor of Malaysia.

If the Philippines comes to ICJ, it will only be armed with the copies of the Lease Agreement of the Sultan of Sulu with Overbeck and the 1907 Exchange of Notes and the Jan. 2, 1930 Convention that ICJ had already ruled did not cause the transfer of sovereign rights from Spain to Great Britain. Malaysia would have the burden of overturning these evidence.

In its case before the ICJ, Malaysia said “it was successor to the Sultan of Sulu, the original title-holder to the disputed (Sabah) islands, further to a series of alleged transfers of that title to Spain, the United States, Great Britain on behalf of the State of North Borneo.” But the ICJ said this argument cannot stand.

After obtaining a lease treaty from the Sultan of Sulu, Overbeck relinquished his rights and interest over to Dent’s British North Borneo Company (BNBC).  Dent applied for a Royal Charter with United Kingdom on Dec. 2, 1878 based on the lease treaty signed away by the Sultan of Sulu on Jan. 22, 1878.

But in an official letter of Jan. 7, 1882, Earl Granville, then, head of the United Kingdom  Foreign Office, stated, “The British crown assumed no dominion or sovereignty over the territories occupied by British North Borneo Company, did not grant the company any powers of government and (it) recognized the delegation of powers by the Sultan of Sulu in whom sovereignty remained vested.”

PROTOCOL OF MARCH 7, 1885 QUESTIONABLE

So, when BNBC transferred its rights over to the UK on June 26, 1946, UK merely acquired powers delegated by the Sultan of Sulu, who retained sovereignty over the Territory.

In the Capitulation of July 22, 1878, Art. I of the Protocol, it declared as “beyond discussion the sovereignty of Spain over all the Archipelago of Sulu and the dependence thereof,” following Sulu’s conquest by Spain in June 1878.

The Sultan of Sulu revoked the lease of Jan. 22, 1878 and in September 1878, a Spanish warship attempted but failed to take control of North Borneo. This caused Great Britain to protest and a treaty among Great Britain, Germany and Spain was forged.

In the Protocol of March 7, 1885, under Art. III, the Spanish government “renounces as far as regards the British government, all claims of sovereignty over the territory of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu (Jolo) and which comprise the neighboring islands … from the coast, and which form part of the territories administered by the company styled the British North Borneo Company.”

There was no logic on this protocol for Spain to renounce the property and sovereignty of the Sultan of Sulu in favor of the British. Spain did not get any incentive or tradeoff to give up the property and sovereignty of Sultan of Sulu’s Archipelago and Dependencies. When Spain signed the 1898 Peace Treaty with the U.S., the FilipinoKatipuneros aided by the U.S. beat Spain and Spain got $20-Million dollar to give up the Philippine and Sulu Archipelago, including North Borneo.

When the Sultan of Sulu gave up its property to Spain, it was by conquest. But in the Protocol of March 7, 1885, there was no reason for Spain to give up the Sultan of Sulu’s property to Great Britain because Britain did not beat Spain in any battle by conquest nor gave Spain money or anything of value in exchange of Sultan of Sulu’s property, including North Borneo.

That’s why when Spain signed the 1898 Treaty, the U.S. was able to keep the Sultan of Sulu’s Archipelago, including North Borneo, intact.

When the U.S. pressed for the Sultan’s property under the 1898 Treaty with Spain, Great Britain did not object but rather sought an arrangement with the U.S. that would ensure continuity of BNBC’s administration of the Sultan of Sulu’s North Borneo that resulted in the Exchange of Notes of July 3 and 10, 1907 and the Jan. 2, 1930 Convention. The  convention did not involve any transfer of sovereignty, according to ICJ. (lariosa_jos@sbcglobal.net)