Sense in the Sabah Claim

by Manuel B. Quintal, Esq.

| Photo courtesy of mintfo.com

With more than half a century since the Philippines’ serious claim to Sabah hit the headlines and with barely two years remaining in the current administration in the Philippines, the Department of Foreign Affairs Secretary announced that it is reviving the Philippines claim to Sabah. Why only now? Is this an official policy of the administration or just an expression of the Philippines’ top diplomat’s desire?

Malaysia and the Philippines based their respective claims on their versions of history. Briefly and reduced to simple terms, the bone of contention in the Sabah disputer is whether or not there was a cession of territory or merely a lease, a right of administration.

The Philippines, as the claimant successor of the Sultan of Sulu, asserts that: (1) the Sultan of Sulu did not give up sovereignty over Sabah in favor of the British North Borneo Chartered Company, and (2) the yearly amount of money paid (which stopped sometime in 2013) to the heirs of the Sultan was rental money. In turn, Malaysia claims that: (1) the Sultan of Sulu gave up sovereignty over Sabah, and (2) the yearly amount of money paid to the heirs of the Sultan of Sulu was installment payment.

“Briefly and reduced to simple terms, the bone of contention in the Sabah disputer is whether or not there was a cession of territory or merely a lease, a right of administration.”

How the Philippines and Malaysia became the current contestants in the claim is the result of historical developments. Great Britain (United Kingdom) had the British North Borneo Chartered Company’s rights transferred to them, which had Sabah as a colony and eventually moved in the early 1960s, newly independent Malaysia country.

Assuming for the sake of argument that the Philippines claim is credible based on its interpretation of the document that has become the basis of its (and also, Malaysia’s) claim to Sabah, one wonder’s why the Philippines is reviving the claim only now. Note that Indonesia and the Philippines protested when the then independent state colonies of Great Britain formed in 1963 (Sarawak, Malaya, Singapore, and North Borneo). Sabah inhabitants voted in a reported referendum to be part of Malaysia. Years later, the Philippines pursued its claim actively, and Manila newspapers even featured a chart of the two countries’ armed forces’ comparative strength. There were mentions of how the United States would react in case of war, given that the Philippines and the U.S had then the Mutual Defense Treaty. Malaysia, at that time, apparently had a similar defense agreement with the United Kingdom.

The Sabah issue would come up now and then with news of smuggling to and from Mindanao, some heirs of the Sultan of Sulu requiring assistance from Manila, and when a Sultan’s heir and his warriors’ group went to Sabah to reclaim it.

“There is reason to believe that a revival of the Philippines’ Sabah claim is just an attempt to divert the public’s attention from its domestic significant problems and the West Philippine Sea’s territorial disputes.”

One wonders how the Philippine government plans to pursue the Sabah claim. Seriously, I do not think the Philippines is willing and able to go to war to (re)claim Sabah. How far is the Philippines ready to go? Do the economic and military capability of the Philippines back up such a claim? It is no longer recognized to have conquest or occupation as a legal way to add territory. There is reason to believe that a revival of the Philippines’ Sabah claim is just an attempt to divert the public’s attention from its domestic significant problems and the West Philippine Sea’s territorial disputes.

The only way the Philippines may legally occupy or hold title to Sabah is by bringing the case to the International Court of Justice (ICJ), which can only be possible if and only if Malaysia agrees. There is no reason why Malaysia should. It has current possession of, and de facto, if not de jure, sovereignty over Sabah.

It is interesting to note, in this regard, the decision of the ICJ on December 17, 2002, on the respective claims of Indonesia and Malaysia over the small islands of Ligitan and Sipadan located in the Celebes Sea, off the north-east coast of Borneo. Both countries agreed to submit the dispute to the ICJ. Both based their claims on a convention signed between Great Britain and the Netherlands, respectively. Both adopted an area in Ligatan and Sipadan islands as a dividing line between the British and Dutch possessions. The ICJ found that neither Indonesia nor Malaysia has any treaty-based title to the islands. The ICJ then considered which of the countries could title these islands by “effective administration.”

“How does the Philippines, particularly under the present administration and within the next two years, under current law it can legally govern, plan to pursue the Sabah claim to its end?”

The ICJ awarded the title to Malaysia because Malaysia’s North Borneo authorities regulated and controlled the collection of turtle eggs on the island, constructed lighthouses in Sipadan and Ligitan, did other acts that had the character of government functions over the islands. Indonesia or the Netherlands did not express any disagreement or protest against these actions.

How does the Philippines, particularly under the present administration and within the next two years, under current law it can legally govern, plan to pursue the Sabah claim to its end? What circumstance(s) led the government to pursue the claim at this time?


ABOUT THE AUTHOR: Manuel B. Quintal, ESQ., practices law in New York since 1989. He is active in the community as a member, an officer or a legal adviser of various professional, business, and not-for-profit organizations. He was a columnist of Newstar Philippines, an English language weekly newspaper published in New York, from 2006-2009. He was Executive Editor of International Tribune, an English language weekly newspaper for the Asian community, based in New York, from 2010 to 2012. He is admitted to practice law in the Philippines and New York State. He has graduate degrees in Political Science and an LL.M. major in International Law.

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