INTERNATIONAL COURT OF JUSTICE

YEAR 2014 2014 18 February General List No. 169 18 February 2014

TERRITORIAL DISPUTE BETWEEN THE PHILIPPINES AND MALAYSIA OVER SABAH (PHILIPPINES v. MALAYSIA)

Geography Historical background 22 January 1878, the Sultan of Sulu entered into a Deed of Padjak with Austrian Gustavus Baron de Overbeck and Englishman Alfred Dent, who were representatives of the British North Borneo Company (hereinafter BNBC).

The deed of padjak constitutes the main basis of the territorial dispute between the Philippines and Malaysia over Sabah No shared understanding of the Parties concerning the translation of the word padjak Philippines claim the term padjak as lease while Malaysia claims that it means cession. The Philippine claim based on the argument that the 1878 Deed or padjak was a treaty of lease Congress adopted in 1950 a concurrent resolution expressing the sense of the Philippines that North Borneo belongs to the heirs of the sultan of Sulu and the ultimate sovereignty of the Republic of the Philippines, and authorizing the President to conduct negotiations for the restoration of such ownership and sovereign jurisdiction over said territory. In 1961, President Diosdado Macapagal filed the Philippine claim to Sabah on the basis of a historical and legal fact. Title of Sovereignty The Sultanate of Sulu had continuously been the rightful sovereign of the portion of Sabah 1973 Constitution The 1973 Philippine Constitution defined the country's territory to include "all the other territories belonging to the Philippines by historic or legal title."

* Malaysian claim Treaty of Cession Malaysia traces its claim to the 1878 Deed signed by the Sulu sultans in favour of BNBC and therefor acquiring sovereignty over Sabah June 1946, the British Crown and BNBC entered into an agreement, which appears to cede and transfer all the rights, powers and interests of BNBC on North Borneo to the British Crown. Right to self-determination and the Cobbold Commission The people of Sabah supported the proposal of the British government to be part of Malaysia Madrid Protocol of 1885 the Sultan of Sulu relinquished the sovereign rights over all his possessions in favour of Spain, based on Bases of

Peace and CapitulationPrinciple of Effective OccupationUnited Kingdom had effectively occupied Sabah until the 1963 when Sabah became part of Malaysia in accordance with the wishes of its inhabitants.

JUDGMENT

Present: President DAYTEC-YAGOT; Judges MARAFO, MANALIGOD; Judges ad hoc CLEMENS, FRONDA; Registrar VELASKOVA.

In the case concerning the territorial dispute, between the Republic of the Philippines, represented by Alday R., Baez M., Bueno J., Bullanday L., Camacho, K., Carreon G., Magsano, J., Pascua R., as Counsel and Advocates; Capistrano J., Claor, R., Dalimag R., Fiesta L., Manaligod J., Tabulog J., Viloria F., as State Advocates; and the Federation of Malaysia, represented by De Luna A., Kingad V., Loresco A., Caraang J., Macadaeg J., Macatangcal A., Puapo, G., Tibangwa E., as Counsel and Advocates Eblahan D., Velasco A., Danglose D., Dumpayan M., Guisdan, J., Gumabol K., Oate J., Pakuran K., as State Advocates THE COURT composed as above, after deliberation, delivers the following Judgment: 1. On 16 January 2010, the Republic of the Philippines (hereinafter Philippines) filed in the Registry of the Court an Application instituting proceeding against the Federation of Malaysia (hereinafter Malaysia) in respect of a dispute concerning, on the one hand, the Philippine claim over Sabah on the grounds of legal and historical bases.

2. In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar immediately communicated the Application to the Government of Malaysia; and, under paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application. 3. At the hearings, a Member of the Court put a question to the Parties, to which replies were given orally in accordance with Article 61, paragraph 4, of the Rules of Court.

4. In the written proceedings, the following submissions were presented by the Parties: On behalf of the Government of the Philippines, For the reasons set out in their claim, the Republic of the Philippines requests the Court to adjudge and declare that: (a) The [lease] agreement between the sultan of Sulu and BNBC is a definite proof of ownership by the former; (b) The Macaskie decision of 1939 is a proof of North Borneo's (Sabah) acknowledgment of the sultan's ownership of the said territory, although the ruling was made just to determine who are entitled to the "cession money", amounting to 5,300 Malaysian ringgit per year; (c) Malaysias claim to sovereignty over Sabah was based on its inclusion in the formation of the Federation of Malaysia; and (d) Malaysias claim is a claim of derivative title, based on: (i) whatever interests the British Government had in Sabah, which were derived from; and (ii) whatever interests the British North Borneo Company (BNBC) had in Sabah, which were derived from whatever interests Overbeck and Dent derived from their 1878 agreement with the Sultan of Sulu. On behalf of the Government of the Philippines, Chile respectfully requests the Court to: (a) dismiss Philippines claim in its entirety; (b) adjudge and declare that: (i) the sultanate of Sulu has ceded Sabah to BNBC and as a result, the latter acquired sovereignty over Sabah; (ii) the British Crown and BNBC entered into an agreement, which consequently ceded and transfer all the rights, powers and interests of BNBC on North Borneo to the British Crown; and (iii) the Cobbold Commission had held a referendum and two-thirds of the people in Sabah agreed to the state being a part of Malaysia. The commission also obtained the recognition of the United Nations. (iv) dispute as a "non-issue" as it interprets the 1878 agreement as that of cession and that it deems that the residents of Sabah had exercised their right to selfdetermination when they voted to join the Malaysian federation in 1963.

5. At the oral proceedings, the Parties presented the same submissions as those contained in their written pleadings. * * *

I. GEOGRAPHY 6. Sabah has a coastline of approximately 800 to 900 miles and with the South China Sea in the west and north, the Sulu Sea in the northeast and the Celebes Sea in the east. Sabah's total land area is 76,115 sq km (29,388 sq miles). It is 1,961 km from Hong Kong, 1,143 km from Manila, 1,495 km from Singapore, 1,678 km from Kuala Lumpur and 2,291 km from Taipei.

II. WHETHER OR NOT THE DEED OF PADJAK WAS AN AGREEMENT OF LEASE 7. In order to settle the dispute before it, the Court must first ascertain whether the term "padjak"as used in the 1878 Deedtranslates to "lease" as Philippines claims. The key word in the agreement is "padjak", a Malay term which was translated by Spanish linguists in 1878 and by American anthropologists H. Otley Beyer and Harold Conklin in 1946 as "arrendamiento" or "lease". The British, on the other hand, used the interpretation of historian Najeeb Mitry Saleeby in 1908 and William George Maxwell and William Summer Gibson in 1924 as "grant and cede". It can be argued however, that "padjak" means "mortgage" or "pawn" or even "wholesale", as per the contemporary meaning of "padjak" in Sulu. The Court will deal with each of these matters in turn.

1. The Macaskie decision of 1939 8. The High Court of the State of North Borneo handed down a decision in Civil Suit No. 169/39. In it, North Borneo Chief Justice C.F.C. Mackaskie stated that the heirs of the Sultan were legally entitled the payment for North Borneo, which the decision calls cession payment on the basis of an English translation by Maxwell and Gibson. 9. In the same decision, Mackaskie renders an obiter dictum opinion or side note, that the Philippine Government is the successor-in-sovereignty to the Sultanate of Sulu. This obiter dictum however, does not establish a legal precedent

2. Statutory Interpretation of the 1878 Deed of Padjak 10. The Court must construe the term used in the agreement according to:

(a) the correct definition of the term padjak at the time the agreement was entered into must be determined; and (b) an examination of the entire agreement and not just the parties respective definitions of padjak to determine their intention.

11. In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivits, which are acts by a State relevant to a claim of title to territory by occupation or prescription, the factual elements that demonstrate the exercise of governmental authority in a territory.

12. 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 with respect to Philippines Historical claim, because Malaysia has no title of sovereignty over Sabah.

III. CONCLUSION 13. When we analyze a territorial dispute, we have to painstakingly consider state conduct. Philippine state conduct serves to maintain their 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.

* 14. For these reasons, THE COURT, (1) By three votes to one,

(2) By one vote to three, Decides that, in light of the Cobbold Commission, consider this dispute as a "non-issue" as it interprets the 1878 agreement as that of cession and that it deems that the residents of Sabah had exercised their right to self-determination when they voted to join the Malaysian federation in 1963. IN FAVOUR: Judge Marafo; AGAINST: Judge Manaligod; Judges ad hoc Fronda, Clemens;

REFERENCES: http://www.icj-cij.org/docket/files/137/17930.pdf http://euro.ecom.cmu.edu/program/law/08-732/Courts/howtoreadv2.pdf Senator Miriam Defensor-Santiago, Sabah Issue In International Law, News, Philippine Daily Inquirer, March 23, 2013, http://opinion.inquirer.net/49361/sabah-issue-in-international-law. FreeMalaysiaToday.com, There Was No Sabah Referendum, March 8, 2013, https://www.freemalaysiatoday.com/category/nation/2013/03/08/there-was-no-sabahreferendum/.