Conflict of Sabah Territory Between Sulu Sultanate and Malaysia in International Law Perspective

1
CONFLICT OF SABAH TERRITORY BETWEEN SULU SULTANATE AND

MALAYSIA IN INTERNATIONAL LAW PERSPECTIVE
CHAPTER 1
A. Study Background
International law is maintaining a significant role today, especially in public
international law, it has certain rules to maintain a relationship between one state and
another ,in fact international law has many weaknesses, one of which is that it cannot
be enforced due to the existence of national law which issued in some cases ,thus it
indicates that national law is stronger than international law.
International law it is can distinguishable from international politics, the
image of international law is conveyed by legal positivist writing, in which its
arguments based on philosophy, theology, science, or morality in favour of an
argument founded on the contents of the formal sources of international law. 1
According to Mochtar Kusumaatmadja, international law is all of principle or norm
that regulates the relationship or the issue that crosses the state border, according to
Shearer, as it was cited by Starke, international law may be defined as body of law
consist of greater part of the principle and rules of conduct which state field
themselves to observe, and therefore, do commonly observe in their relation with
each other, and which is include also the rule of law that relates to the functioning of
international institutional or organization, their relation with each other, and their
1
Shirley V. Scott ,Identifying the Source and Nature of a State's Political Obligation towards
International Law,Journal of International Law & International Relations,Winter, 2004/Spring, 2005
2
relation with state and individual, and the rule of law that relates to individual and
non-state so far as the right or duties of such individual and non-state entities or the
consent of international community.2. National law itself has sovereignty of the
state ,the sovereignty itself is absolute requirement in one state, so if there is mean the
sovereignty of the state is refers to the state that has an absolute power to enforce 3., It
may be apply in conflict between Sulu Sultanate and Malaysia in Sabah.
Sabah is one of the 13 member states of Malaysia, and is its easternmost state.
One of the two Malaysian states on the island of Borneo, is located in the northern of
the island close to the Philippine islands. Sabah formed part of the Sulu Sultanate
,which once spread over several southern Philippine islands as well as parts of
Borneo , before it was designated a British protectorate in the 1800s. The former
British colony became part of the federation of Malaysia when it was formed in
1963 and the country still pays rent to the Sulu Sultanate each year 4. On 9, 2013
February around 100 armed Filipino men from the Sulu archipelago landed on the
eastern coast of Sabah and occupied the small village of Kampung Tanduo
approximately 100 km east of Lahad Datu , group of gunmen calling Royal Army of
Sulu, the clan members said they were descendants of the Sultanate of Sulu in the
southern Philippines, which ruled parts of northern Borneo for centuries, a two week
2
Sefriani, Suatu Pengantar Hukum International, Rajawali Pers PT.Raja Grafindo persada, Jakarta,
2010,
3
Mochtar Kusumaatmadja, pengantar hukum internasional, PT Alumni, Bandung, 2010
4
http://www.bbc.co.uk/news/world-asia-21680628 accesed on 11 juni 2013
3
stand-off ensued, but violence broke out in at least two places late last week, leaving
eight members of the Malaysian security forces and 19 clan members dead.
Then on 1 March 2013 there was an exchange of fire and a number of
fatalities, on 3 March 2013 there were reports of further incidents on the coast
between Lahad Datu and Semporna. In addition, Malaysian security forces were sent
to the area on 4 March 2013 and 5 March 2013 airstrikes and other military action
was reported against locations combatant by the armed group from Sulu around
Kampung Tanduo.5
Based on the fact there is any international law violations, Malaysia use many
arms to kill people of Sultanate Sulu, it is contradict with Necessity and
proportionality principle of international humanitarian law. In additionaly From an
IHL perspective, the principles of responsible command and superior responsibility
are instrumental for the enforcement of the laws of armed conflict. Under the
principle of superior responsibility, superiors are criminally responsible for war
crimes committed by their subordinates6.. Further, attacks on military objects must
not cause loss of civilian life considered excessive in relation to the direct military
advantage anticipated.
Every action must be taken by commanders to avoid civilian causalities . The
principle of proportionality has become part of customary international law in
5
Ibid.
6
Chia Lehnardt ,Individual liability of Private Military personnel under International Criminal
law,Oxford University Press ,2013
4
international and non-international armed conflicts7. It is also contradict with the
principle of distinction which protects civilian persons and civilian objects from the
effects of military operations..8.
Malaysia conclude that their use certain of State to exercise jurisdiction over
conduct committed by non-nationals, against non-nationals, for violations of
international criminal law committed outside the State. States may then use their
territorial enforcement jurisdiction to arrest, detain, extradite, prosecute and/or punish
these individuals if they are located within their territory 9.
According to the agreement betwen British and Sulu Sultanate, stipulated that
the North Borneo leased by British on on 28 january 1878. Because of that the
territory did not go back to the Sultanate Sulu but including into Malaysia territory
on 16 september 1963. English grant the territory to the Malaysian government,
Sabah territory is one of the Malaysia territory which agree to join into Malaysia on
16 september 1963.,
Historically the former territory of North Borneo was leased by British, in
return for payment of 5000 Malayan dollar per year. The sum is aproxamitely
increased to 5300 dollars Malayan when the land extended include the island along
the coat of North Borneo ,before that, the Sulu Sultanate based on jolo and a piece of
mindanao, now was absorbed by Phillipines became a territory of the united states in
7
ICRC, 2005b, vol. 1 accesed on 11 juni 2013
8
Geneva additional protocols 1977 (AP I, Arts 48, 51-52, 57; AP II, 13-16)
9
Andrew Sanger, Immunity of State Officials from the criminal jurisdiction of a foreign
state,Cambridge University Press, ,© 2013
5
1898, without the North Borneo 10, The legal claim of the heirs of the Sulu Sultanate
is not only on the leasehold agreement between the Sultanate and the North Borneo
Company, a British company, but also on a 1939 judgment rendered by the High
Court of North Borneo upholding the claims of the Sultan Sulu, long before the
formation of the Federation of Malaysia.11
After the second world war , the British allowed North Borneo to join the
federation of Malaya in 1963 and ist change the name to be "Sabah". Phillipines
claimed sovereignty over Sabah when joined federation of Malaysia ,but then
Philipina agreed in 1977 not to claim.,12
A nation state can acquire sovereignty territory if the sovereignty is transfer or
ceded by another sovereignty. 13, according to the agreement between English and
Sulu Sultanate on 28 january 1878 between Alfred dent, Baron von over back English
and sultan Sulu there is any differentiation perspective, based on sulu perspective, the
agreement was leased agreement while, base on British version the agreement was
transfer of authority,
If the British version of 1878 treaty was adopted, is clear that sovereignty over
Sabah was trasfered in 1878 by the Sultanate of Sulu to the British, which later
10
Mohd Hazmi bin Mohd Rusli, 2013, Sultan Of Sulu’s Sabah Claim: A Case Of ‘Long-Lost’
Sovereignty?Analysis, RSIS, Singapore. accesed on 11 juni 2013
11
manilastandardtoday.com/2013/02/18/the-Sultanate-of-Sulu-and-Sabah/ accesed on 11 juni 2013
12
Op Cit.,pg.1
13
John C. Duncan, Jr,Boston College International and Comparative Law Review, Boston College Law
School,Boston, 2012
6
transfered the Sabah to the federation of Malaysia14, although according to Mochtar
kusumaatmadja the kind of its treaty is not including international treaty , because not
come its didnot come from two state party, but it came from company and state.
Based on 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 196315, whereby the colony of North Borneo was to be “federated with the
existing States of the Federation of Malaya as the Sabah.
Sultan sulu claim have weak legal position, the claim of Sabah as ancestral
territory of the Sultan of Sulu’ does not carry much under international law. While
historically, Sabah was part of the Sulu Sultanate, Claim based on historical or
ancestral right can no longer withhold the dominant principle of self-determination in
the modern context of international law.
In perspective of jurisdiction, Malaysian have jurisdiction to take enforce on
the sulu gunmen , the definition of jurisdiction it is ,the power of a state to bring any
matter within the responsibility of its national law as self defence , is the power of a
state to assert the applicability of its national law to any person, property, territory or
event, wherever they may be situated or wherever they may occur, in essence, the
jurisdiction comprises a generally power to claimed over any matter.
14
Ibid.
15
http://www.malaysia-chronicle.com accesed on 10 september 2013
7
because of that reason the author is pretension to make a research on conflict
of Sabah territory between Sulu Sultanate and Malaysia in International law
perspective.16
B. Statement Question
1. How is the legality of Sabah territory which is claimed by Sulu Sultanate based on
international law perspective ?
2. What is the legality sultan sulu claim over sabah territory based on international law
perspective ?
C. Research Objective
1) The objective of the thesis is to analyze the legality of Sabah territory which claimed
by Sultanate of Sulu based on international perspective, by conducting this research
author hope we can learn more about international law, for purpose we not doing the
same thing fault in the future.
16
Ibid
8
2) The objective of the thesis is to analyze the legality based of sultan sulu claim, by
conducting this research author hope the readers can learn more the legality of
recognition in international law to a certaint territorial.
D. Definition of Technical terms
These are several terminologies used in this thesis. These terms will further
explained in order to make the analysis clearer and help the reader to understand
easily :
1. Legality
The principle of legality is mean the legal ideal that requires all law to be
clear, ascertainable and non-retrospective. It requires decision makers to
resolve disputes by applying legal rules that have been declared beforehand,
The principle can be varyingly expressed in Latin phrases such as Nullum
crimen, nulla poena sine praewith lege poenali (No crime can be committed,
nor punishment imposed without a pre-existing penal law), nulla poena sine
lege (no penalty without law) and nullum crimen sine lege (no crime without
law)17.
2. Combatant
17
Kelsen, Hans. General Theory of Law and State (Cambridge, Mass. : Harvard University Press, c1945)
(Cambridge, Mass. : Harvard University Press, 1949) (New York : Russell & Russell, 1961) (New
Brunswick, New Jersey : Transaction Publishers, c2006)
9
It is persons taking a direct part in conflict in non-international armed
conflicts are sometimes labelled “combatants”. is only used in its generic
meaning and indicates that these persons do not enjoy the protection against
attack accorded to civilians, but this does not imply a right to combatant status
or prisoner-of-war status, as applicable in international armed conflicts . Its
also means persons taking active part in the conflict members of dissident
armed forces or other organized armed groups; persons who take a direct part
in conflict; civilians who take a direct part in conflict; 18
E. Theoretical Framework
1). Territory acquisition
According to international law there are any method and theory through
territory aqcuisition it is include conquest, prescription annexation or cession, about
conquest or annexation was recognized as a method of territorial acquisition in the
past but has been deemed illegal under international last since the UN charter came
into force around the world in 1945. AccordingMochtar Kusumaatmadja annexation
is the expansion to wideness the national territorial with force,(arms force), although
the annexation state or conquest state cannot acquire the territory with illegal basis
and have no reason to acquire right and claimed about one territory ,but in
development of international law sometimes can be accepted if another country
18
http://www.icrc.org/customary-ihl accesed on 11 juni 2013
10
recognized it, or according international law the conquest state also be able acquire
the annexation territorial in belligerent occupation, the most relevant method for
Sabah is may correct if through cession and prescription 19. There is the definition of
prescription, cession, conquest or anexation, also acretion
According to Mochtar Kusumaatmadja prescription is implementing
sovereignty of de facto state with peace and for a certain time, not to terranulius but
to the territory under the sovereignty of other countries, therefore there is any
difficulties to accept prescription to be international legal basis to acquire territory ,
there is no clarity presedent which show how long the time was needed to
implementing of sovereignty with de facto and peace. 20 In additionaly Prescription
indicates the acquisition of title by a long-continued and undisturbed possession,
although there is no general rule for governing the necessary length of time to
substantiate a prescription claimed21
Cession is the most of theory which use to maintaining to achieve
territorial, ,definision of cession is the grant of territorial area with peace settlement,
usually implemented by agreement to finist the war, althought in colonial era cession
also practically by authority from any territorial area 22. The most common scenario,
19
Op.Cit., page.168
20
Op,Cit,
21
Seokwoo Lee, Continuing Relevance of Traditional Modes of territrial Acquisition in International
Law and a Modest,Connecticut Journal of International Law, , 2000
22
Ibid., page.165
11
has been territory to be transferred “voluntarily” by a defeated power in a peace
treaty.23
Then conquest, in international law, the acquisition of territory through force,
especially by a victorious state in a war at the expense of a defeated state. An
effective conquest takes place when physical appropriation of territory (annexation).
Conquest is associated with the traditional principle that sovereign states may resort
to war at their discretion and that territorial and other gains achieved by military
victory will be recognized as legally valid 24. Additionaly the definition of acretion,
acretion refers to the physical expansion of an existing territory through geographical
processes. ,
Moreover Malaysian government with the Sultan of Sulu descent and / or
offspring, not the parties with equal status in international law, Armed conflict is
recognized only if the parties involved is the state as a legal entity. In relation to the
claim on Sabah as the sovereign territory of the Sultan of Sulu, can invite different
interpretations. Malaysian royal military action that resulted in the death of the Sultan
of Sulu supporters, theoretical justification in terms of international law. By Victor
Prescott, a border dispute in the region occur if entered on four (4) groups below:
23
Sharon Korman,Right of conquest: the Acquisition of Territory by Force in International Law and
Practice, Edinburgh Law Review, 1997
24
http://global.britannica.com/EBchecked/topic/133118/conquest accesed on 11 juni 2013
12
a. Positional dispute, a dispute is a result of differencesinterpretation of legal
documents or a change in locationa change in the physical signs that use as a
border.
b. Territorial dispute, is a dispute which occurs when two or more countries
claiming the equal territory as the territory or part of the territory. This
happens due to historical reasons or geographical interests.
c. Functional dispute, is a dispute of the mobilization of people and the goods,
in the absence of safeguards that are too tight.
d. Transboundary resource disputes, disputes that arise are due to exploitation
of natural resources by other countries and harm other countries in border.
Of the four models of the dispute, is almost hard to put the case Sabah into
conflict with one of the motives. Prescott also mentioned, that the Another approach
to understanding the issues in a dispute over territory. international law commonly
used to determine the territorial sovereignty, including use of the concept of terra
nullius, only applies to European countries at the time of colonization25
2). State jurisdiction
25
Jawahir Thontowi, konflik bersenjata di sabah dan penyelesaiannya dalam hukum
internasional,clds UII,2013
13
According Territorial jurisdiction a state has jurisdiction over all matters arising
in is territory,this is so whether the individual concerned are nationals, friendly aliens
or enemy aliens, and is primary ground for Scotland's assertion of jurisdiction in the
Lockerbie case.26
There is no hesitation that this rule accords with international practice and the
greater part of the criminal and civil jurisdiction exercised by states is based on this
principle, also according Martin Dixon there is any two approaches to territorial
jurisdiction that is
i. Objective territoriality
Is mean a state will have jurisdiction over offences which are completed in
is territory, even thugh some element constituting the offence (or civil
wrong) took place abroad, for example a collision between, a French ship,
and a Turkish vessel resulted in the death of eight person on the Turkish
vessel. French objected to the exercise of jurisdiction by Turkey over the
French officer of the watch, however after noting that the Turkish vessel
was to be assimilated to turkish territory, the PCIJ decided that Turkey
was entitled to exercise jurisdiction by virtue of the fact that a constituent
element in the offence of manslaughter had occured on Turkish territory 27
ii. Subjective territoriality
26
Op.Cit,
27
Ibid.,page.137
14
It is mean a state has jurisdiction over all offences and matters
commencing in is territory,even if some element or the completion of the
offence takes place in another state 28.
3). Uti Possidetis Theory
The definition it is Uti possidetis (Latin for "as you possess") is a principle in
international law that territory and other property remains with its possessor at the
end of a conflict, unless otherwise provided for by treaty; if such a treaty does not
include conditions regarding the possession of property and territory taken during the
war, then the principle of uti possidetis will succeed.Originating in Roman law, the
phrase is derived from the Latin expression uti possidetis, ita possideatis, meaning
"may you continue to possess such as you do possess" (lit., "as you possess, thus may
you possess")29. The use of uti possidetis in the context of border issues first arose in
the early nineteenth century in the context of the decolonisation of Central and South
America from Spanish and Portuguese rule. The principle, when applied, meant that
former colonial borders became international borders of the newly independent states.
There are two versions of the uti possidetis principle. By uti possidetis juris, borders
are defined according to legal rights of possession based upon the legal documents of
the former colonial power at the time of independence. By uti possidetis de facto,
borders are defined by territory actually possessed and administered by the former
colonial unit at the time of independence, irrespective of the legal definition of former
28
Ibid.,
29
http://definitions.uslegal.com/u/uti-possidetis/ accesed on 1 september 2013
15
colonial borders. Of these two versions, uti possidetis juris was more commonly
applied in Latin America.
With the decolonisation of Africa after World War II, the principle of uti possidetis
juris was effectively adopted by a resolution of the Organisation of African Unity at
its Cairo Conference in 1964 (‘ 1964 OAU Resolution’). by which member states
pledged themselves ‘to respect the borders existing on their achievement of
independence.30
Research Method
I. Object of research
The legality of Sabah territory
The legality of sulu claim
II. Legal Materials
1).Primary Legal Materials
 United Nation Charter
 Vienna convention on the law of treaties
 Geneva convention 1949 and geneva protocol 1977
30
Peter Radan ,post-secession international borders: a critical analysis of the opinions of the badinter
arbitration commission, Melbourne University Law Review
April, 2000
16
 Agreement between Sulu Sultanate and British 1878
 Other related International Doctrine and Regulation
2).Secondary Legal Materials
 Book ,journal,thesis,magazines and news, related to primary
sources, and can help to analyze and understand primary
sources related to the conflict of Sabah territory between Sulu
Sultanate and Malaysia in international law perspective
3). Tersier Legal Materials
 Legal Dictionary, Encyclopedia
III. Method of Research
The research method which was applied in this thesis was using library
studies. The data was collected from books that were related to the
problem of Sabah territory which claimed by Sulu Sultanate, and also
any case which related by the main problem.
IV. Method of Approach
This thesis used the juridical approach by analyzing the problems from
the point of view of legal regulation, doctrine, convention and the
customary law in international society.
V. Method of Analyze
17
In analyzing the data, this thesis employed descriptive qualitative
method. The obtained data was descriptively presented and analyzed in
accordance to the regulation, legal decrees and rules related case or
problem of Sabah territory dispute between Malaysia and Sulu
Sultanate.
F. Thesis framework
This thesis will be organized and divided into 5 (five) chapters, while
the structure as follows Chapter I is the introduction. This chapter is an
introductory chapter that describes the background of the problem,
formulation of the problem, research objectives, literature review,
research methods, thesis framework. Chapter II is an overview that
stated a several theory which related into cases conflict between sulu
Sultanate and Malaysia federation there is territory acquisition,
international treaty law on the case ,recognition under belligerency, and
legal implication of territory recognition. Chapter III is a analysis of first
question that is The legality of Sabah territory which is claimed by
Sultanate Sulu which accordance theory which stated in second chapter
including theory of Acquisition applied in Sabah from federation of
malaysia perspective, the treaty between sulu Sultanate and english
company are include in international treaty and the recognition of Sabah
territory in international law . Chapter IV this chapter will analyzed the

18
results of research in accordance with the formulation of the second
problem question that is how is the sulu legality of Sabah territorial
recognition is including the legal implication , the right and obligation of
Malaysia itself, and status of sulu gunmen international law. Chapter V
is closing, this chapter will analyzed the conclusions about the results of
this study and suggestions related to this research.
CHAPTER II
19
TERRITORY INTEGRATION,TERRITORIAL ACQUISITION ,STATE
JURISDICTION, UTI POSSIDETIS,INTERNATIONAL TREATY LAW IN
PERSPECTIVE OF INTERNATIONAL LAW
A.TERRITORY INTEGRATION
According Stephen B. Jones (1945) ,stated a theory related establishment of the
border over a state. In his theory, Jones split process of forming the border into four
sections, namely: allocation, Delimitation, demarcation and Administration/join
border management
 Allocation
Understanding the allocation in this theory is the coverage of the territory of a
state, including where the region bordering neighbors countries..Area is
definitely one of the essential elements of existence a country that can be
recognized internationally. traditional standards of an entity called the state is
using the benchmark, in Article 1 of Montevideo Convention 1993.
Convention stated, that States as subjects of international law must have: (a).
Permanent resident; (b). Specific region ( Recognized internationally
boundary );(c). Government, and (d). Capacity to engage internationally.
There is no difference between Singapore with an area of 278 km and China

20
with an area of 9,596,961 miles. Therefore, in this context does not in an area,
but rather to its existence as a sovereign state.31
 Delimitation
Delimitation is the process of determining the boundary line of the border
country32
 Demarcation
Boundary demarcation or affirmation in the field is a next stage after the
boundary line established by the State Government between each other. In this
context, the border has been defined,technically through the provision of sign/
marker borders, natural border or man-made (artificial). This is in line with
understanding of border itself.33
 Join border management
In a good border management by theory of boundary making , activities
Administration/management development border can be implemented This is
based on the consideration that,, often faced constraints and dynamics that
31
Evans, Malcolm D. (ed.), Internasional Law, Cambridge University Press,
Cambridege, 2003
32
Saru Arifin, Pelaksanaan Asas Uti Possidetis DalamPenentuan Titik Patok Perbatasan Darat
Indonesia dengan Malaysia,Yogyakarta,2009
33
Ibid.,
21
occur in the field ,regarding economic, social, cultural and political,
management runs together with the implementation of the boundary on the
ground confirmation. Within the scope of the administration and management
of development here, the volume of work in dealing with the border is the
most large, because it involves multi-sectoral and planning required
integrated. Almost all aspects of the development of the political aspect,
economic, social, cultural, legal, infrastructure, environment, defense and
security would be at this stage. In terms of bilateral, bordering the two
Additional By Victor Prescott, a border dispute in the region occur if entered on four
(4) groups below:
a. Positional dispute, a dispute is a result of differences interpretation of legal
documents
b. Territorial dispute, is a dispute which occurs when two or more countries
claiming the equal territory as the territory or part of the territory itself. This
happens due to historical reasons or geographical interests.
c. Functional dispute, is a dispute of the mobilization of people and the goods,
in the absence of safeguards that are too tight.
d. Transboundary resource disputes, disputes that arise are due to exploitation
of natural resources by other countries and harm other countries in border.

22
Of the four models of the dispute, is almost hard to put the case Sabah into conflict
with one of the motives..34
B.TERRITORIAL ACQUISITION
According to international law there are any method and theory through
territory aqcuisition it is include conquest, prescription annexation or cession, about
conquest and annexation was recognized as a method of territorial acquisition in the
past but has been deemed illegal under international las since the UN charter came
into force around the world in 1945. AccordingMochtar kusuma atmaja annexation is
the expansion to wideness the national territorial with force,(arms force).In
development of international law sometimes can be accepted if another country
recognized it, , the most relevant method for Sabah is correct if through cession.
Additionaly according to Mochtar Kusumaatmadja prescription is
implementing sovereignty of de facto state with peace and for a certain time, not to
terranulius but to the territory under the sovereignty of other countries 35,
Cession is the most of theory which use to maintaining to achieve territorial,
,definision of cession is, the grant of territorial area with peace settlement, usually
34
Jawahir Thontowi, konflik bersenjata di sabah dan penyelesaiannya dalam hukum
internasional,clds UII,2013
35
Op.,cit
23
implemented by agreement to finist the war althought in colonial era cession also
practically by authority from any territorial area36.
1. The Doctrine of Occupation
The doctrine of occupation depends intimately on the doctrine of discovery.
Occupation requires settlement of non-appropriated territory by a State, with the
intent of incorporating the territory into the national domain and exercising
sovereignty over it. Although historicaly European powers permitted simple
discovery by other European States into the eighteenth century, title claimed
eventually required occupation of discovered lands States often manifested
occupation by installing a defensible fort on the land to demonstrate their ability to
safeguard the land from indigenous societies and foreign invaders.37
2. Prescription
Prescription indicates the acquisition of title by a long-continued and
undisturbed possession, although there is no general rule for governing the necessary
36
Ibid
37
School,Boston, 2012
24
length of time to substantiate a prescription claimed. Jennings and Watts further
declare, “ state has been considered to be the lawful owner even of those parts of its
territory of which originally it took possession wrongfully, provided that the
possessor has been in undisturbed possession for so long as to create the general
conviction that the present condition of things is in conformity with international
order.” Although prescription may allow a state to acquire title to territory that it has
seized by force, it requires the acquiescence of the former sovereign,38.
3. The Doctrine of Cession
Acquisition under the doctrine of cession occurs when one State transfers land
to another State with treaty. . It can also occur by exchange, as evidenced by the
1890 cession by Great Britain of the island of Helgoland to Germany in exchange for
territory adjoining German East Africa. Alternatively, a peace treaty may govern the
transfer of land, such that the value-in-exchange consists of the agreement to a
permanent cessation of conflict. Cession creates “the formal transfer from one state to
another of the sovereignty over a definite area of territory.” The doctrine of cession
is the only mode of acquisition that requires the relationship intentions of at least two
States. The receiving State must manifestly intend to receive the land and
38
Seokwoo Lee, Continuing Relevance of Traditional Modes of territrial Acquisition in International
Law and a Modest,Connecticut Journal of International Law, , Connecticut, 2000 pg 9
25
subsequently establish sovereignty. The ceding State must manifestly intend to
transfer the land and surrender all claimeds of sovereignty.39.
In past centuries, a transfer made under dures,that is, under the threat of force
was a valid manner of transferring title. For a time, tribunals even considered the
doctrines of conquest and cession as alternative, The 1969 Vienna Convention,
however, declared that, “cession by treaty is void where the conclusion of the treaty
has been procured by the threat or use of force ..40
4.The Doctrine of Conquest
The doctrine of conquest is one of the earliest and most prominent doctrines
of acquisition. Title by conquest was perfectible if the conquering State declared an
intention to conquer, took the territory by force, and had the ability to govern it.
Most States in past centuries considered this a valid method of acquisition. The
European powers colonized Asian territories largely with the doctrines of conquest
and cession. The British acquisition of India, the Dutch acquisition of the Caribbean
islands known as the East Indies, and the Russian acquisition of most of northern and
41
central Asia are just a few examples. .
39
Op cit.,
40
Ibid.
41
Ibid.
26
The doctrine of conquest gave the victory State sovereignty over the
conquered territories and their indigenous societies.. Annexation was also necessary
to establish sovereignty, and established an expectation that unambiguous artifacts of
annexation would be manifested. The conqueror must intend to govern the territory,
have effective possession and control, and no exiled government or allies thereof may
exist to contest control. International law recognized title as valid if the conquered
State was totally destroyed ., through a peace treaty granting cession,. During World
War II, the members of the Western-Orthodox alliance “expressly disclaimeded the
intention of annexing Germany, although they had occupied all of Germany's territory
42
and defeated all of Germany's allies.” .
The doctrine of conquest has become an justification for acquisition.
International law has either entirely extinguished or heavily restricted recognition of
title under this doctrine. These restrictions on territorial rights under the doctrine of
conquest result from shifts in moral views during the twentieth century, as human
rights have become more influential in policy determinations 51, Annexation refers to
the transfer of land that has been conquered in armed conflict and is therefore closely
related to the law of conquest.43.
Certainly up until World War II, international law recognized the acquisition
of territory following conquest. The right of conquest was the right of a military
victory to sovereignty over the conquered territory and its inhabitants. It is clear that
42
Ibid.
43
Ibid.
27
military victory alone does not lead to the acquisition of territory under international
law. Only when military victory is accompanied by certain other conditions is the
conqueror entitled to proceed with the act of annexation of some or all of the territory
of the defeated state44.
According to this commonly accepted definition, three criteria must be
satisfied in order for there to be a lawful conquest: first, there has to be a taking of
territory by force during war, and the victory must physically occupy a part or whole
of the territory of the enemy state in order to annex it; second, this occupation must
be done with the intention of extending its own national sovereignty over that
territory; and third, the control over the conquered territory has to be effective and
recognized. The general rule for the acquisition of territory by conquest is that only
the land actually occupied by the victory can be annexed.
In order to acquire territory by conquest, a state must demonstrate a
willingness to govern that territory, as the second condition specifies. This is usually
achieved by actual possession of the territory and some other manifestation of the
intent to incorporate the land as part of the conqueror's state. Taking actual possession
over a territory and bringing it within the administration of the state demonstrates an
intention on the part of the conquering state to acquire that territory,..45
In order to have the right to acquire land following a military defeat, the
conqueror must be in effective control of it.. 46.
44
Ibid.
45
Ibid.
46
Ibid.
28
5. Practical Limitations on Annexation Under Claimed of Self-Defense
Practical restriction is that under the U.N. Charter, it is impossible to acquire
territory through measures of self-defense. A defending State has no justification for
taking any of the territory of the aggressor after it successfully repels an attack.Were
it possible for one State to acquire land from an aggressor State, it could discourage
States from invading other nations..” The Vienna Convention voids any treaty into
which a State enters under the threat of force that is,. Thus, any annexation resulting
from self-defense would almost certainly be formalized in an agreement to end the
war, and would therefore be void under the Vienna Convention47.
C.STATE JURISDICTION
According Territorial jurisdiction a state has jurisdiction over all matters arising
in is territory,this is so whether the individual concerned are nationals, friendly aliens
or enemy aliens, and is primary ground for Scotland's assertion of jurisdiction in the
Lockerbie case.48
There is no hesitation that this rule accords with international practice and the
greater part of the criminal and civil jurisdiction exercised by states is based on this
47
Op Cit.,Seokwoo Lee , , Continuing Relevance of Traditional Modes of territrial Acquisition in
International Law and a Modest,Connecticut Journal of International Law, , Connecticut
48
Martin Dixon, 2000, International Law, Black Stone Press Limited, London, 2000
29
principle, also according Martin Dixon there is any two approaches to territorial
jurisdiction that is
i. Objective territoriality
Is mean a state will have jurisdiction over offences which are completed in
is territory, even thugh some element constituting the offence (or civil
wrong) took place abroad, for example a collision between, a French ship,
and a Turkish vessel resulted in the death of eight person on the Turkish
vessel. French objected to the exercise of jurisdiction by Turkey over the
French officer of the watch, however after noting that the Turkish vessel
was to be assimilated to turkish territory, the PCIJ decided that Turkey
was entitled to exercise jurisdiction by virtue of the fact that a constituent
element in the offence of manslaughter had occured on Turkish territory 49
ii. Subjective territoriality
It is mean a state has jurisdiction over all offences and matters
commencing in is territory,even if some element or the completion of the
offence takes place in another state 50.
D.UTI POSSIDETIS THEORY
49
Ibid.,page.137
50
Ibid.,
30
end of a conflict, unless otherwise provided for by treaty. if such a treaty does not
war, then the principle of uti possidetis will succeed.Originating in Roman law, the
you possess")51 .The principle of uti possidetis in international law was initially
applied in a method of determining the territorial changes that had occurred as a
result of an armed conflict.’ Thus, subject to a provision in a peace treaty to the
contrary, at the end of a war each state retained as its territory that which it actually
possessed at the time conflict ceased..
There are two versions of the uti possidetis principle. By uti possidetis juris,
borders are defined according to legal rights of possession based upon the legal
documents of the former colonial power at the time of independence. And by uti
possidetis de facto, borders are defined by territory actually possessed and
administered by the former colonial unit at the time of independence, irrespective of
the legal definition of former colonial borders. Of these two versions, uti possidetis
juris was more commonly applied in Latin America.
With the decolonisation of Africa after World War II, the principle of uti
possidetis juris was effectively adopted by a resolution of the Organisation of African

51
31
Unity at its Cairo Conference in 1964 (‘ 1964 OAU Resolution’). by which member
states pledged themselves ‘to respect the borders existing on their achievement of
independence.’52
Prior to 1986 the legally binding nature of the uti possidetis principle depended
upon it being specifically fixed by treaty between the relevant states as the basis for
resolving a border dispute. In the absence of such a specific stipulation the principle
did not apply. The principles upon which any arbitral body was to determine a border
dispute were dependant upon the provisions of the relevant treaty or agreement.
When such a treaty or agreement stipulated the application of the principle of uti
possidetis, it became the ‘first duty’ of any appointed arbitral body to establish the
border line according to that principle. If a treaty was silent on the basis upon which a
border dispute was to be resolved, the arbitral body could, but was not obliged to,
apply the principle of uti possidetis juris53.
E.INTERNATIONAL TREATY LAW
52
Enver Hasani ,uti possidetis juris: from rome to kosovo, Fletcher Forum of World
Affairs,Summer/Fall, 2003
53
Ibid
32
The definition of international treaty according to Mochtar Kusumaatmadja ,
international treaty it is a treaty made between between members of the community
of nations and aims to result in certain legal consequences.54
Is clearly that ,to enter international treaty, the treaty must made by international legal
subject which member of international society or a state . According to Mochtar
Kusumaatmadja , there is not include as international treaty if the treaty made and
beginning betwen big Trade Union for example East India Company and Verenegde
Oost Indische Compagnie with the head of native people, also not included as
international treaty if in the contract made between a state with a person (natural
person) or between any state with any legal person, for example United States oil
company , contract between a state with oil company according to Mochtar
Kusumaatmadja is not include as international treaty law ,because regulated with the
state party national law and can be concessions etc 55
According International Treaty Law the form of International Treaty law itself
decided into
Treaty
A treaty is an official, express written agreement that states use to legally bind
themselves. A treaty is that official document which expresses that agreement in
54
Mochtar Kusumaatmadja, pengantar hukum internasional, PT Alumni, Bandung, 2010
55
Ibid
33
words, and it is also the objective outcome of a ceremonial occasion which
acknowledges the parties and their defined relationships56.
Declaration
The term "declaration" is used for various international instruments. However,
declarations are not always legally binding. The term is often deliberately chosen to
indicate that the parties do not intend to create binding obligations but merely want to
declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can
however also be treaties in the generic sense intended to be binding at international
law. It is therefore necessary to establish in each individual case whether the parties
intended to create binding obligations. Ascertaining the intention of the parties can
often be a difficult task. Some instruments entitled "declarations" were not originally
intended to have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary law at a later
stage. Such was the case with the 1948 Universal Declaration of Human Rights. 57
Charter
The term "charter" is used for particularly formal and solemn instruments, such as the
constituent treaty of an international organization. The term itself has an emotive
content that goes back to the Magna Carta of 1215. Well-known recent examples are
56
Loc.Cit
57
treaties.un.org accessed on 02 April 2013
34
the Charter of the United Nations of 1945 and the Charter of the Organization of
American States of 1952.58
Protocol
A Protocol based on a Framework Treaty is an instrument with specific substantive
obligations that implements the general objectives of a previous framework or
umbrella convention. Such protocols ensure a more simplified and accelerated treaty-
making process and have been used particularly in the field of international
environmental law. An example is the 1987 Montreal Protocol on Substances that
Deplete the Ozone Layer adopted on the basis of Arts.2 and 8 of the 1985 Vienna
Convention for the Protection of the Ozone Layer 59
Pact
Is an agreement between two or party in international society to gain mutual
purposes, for example warsawa pact.60
Modus Vivendi
a modus vivendi is an instrument for establishing an international accord of a
temporary or provisional nature, intended to be replaced by a more substantial and
58
Ibid
59
Ibid
60
http://www.thefreedictionary.com accessed on 15 april 2013
35
thorough agreement, such as a treaty. It is usually fashioned informally, and so never
requires legislative ratification.61
conventiont
"convention" was regularly employed for bilateral agreements, it now is generally
used for formal multilateral treaties with a broad number of parties. Conventions are
normally open for participation by the international community as a whole, or by a
large number of states. Usually the instruments negotiated under the auspices of an
international organization are entitled conventions (e.g. Convention on Biological
Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna
Convention on the Law of Treaties of 1969). The equality holds true for instruments
adopted by an organ of an international organization (e.g. the 1951 ILO Convention
concerning Equal Remuneration for Men and Women Workers for Work of Equal
Value, adopted by the International Labour Conference or the 1989 Convention on
the Rights of the Child, adopted by the General Assembly of the UN).62
Memorable of Understanding
A memorandum of understanding is an international instrument of a less formal kind.
It often sets out operational arrangements under a framework international agreement.
It is also used for the regulation of technical or detailed matters. It is typically in the
61
Loc.Cit
62
Ibid
36
form of a single instrument and does not require ratification. They are entered into
either by States or International Organizations. The United Nations usually concludes
memoranda of understanding with Member States in order to organize its
peacekeeping operations or to arrange UN Conferences. The United Nations also
concludes memoranda of understanding on cooperation with other international
organizations63.
Agreement
Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties
employs the term "international agreement" in its broadest sense. On the one hand, it
defines treaties as "international agreements" with certain characteristics. On the
other hand, it employs the term "international agreements" for instruments, which do
not meet its definition of "treaty". Its Art.3 refers also to "international agreements
not in written form". Although such oral agreements may be rare, they can have the
equal binding force as treaties, depending on the intention of the parties. An example
of an oral agreement might be a promise made by the Minister of Foreign Affairs of
one State to his counterpart of another State. The term "international agreement" in its
generic sense consequently embraces the widest range of international instruments64.
Exchange of Notes
63
treaties.un.org accessed on 02 April 2013
64
Ibid
37
An "exchange of notes" is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval65.
If we adopted Mochtar Kusumaatmadja theory so the agreement and treaty between
Sulu Sultanate and British Trade Union not include as international treaty law
because the party come from legal person (British Trade Union) and the state.
CHAPTER III
LEGALITY OF SABAH TERRITORY BASED ON INTERNATIONAL
LAW PERSPECTIVE
65
Ibid
38
A.The Acquisition of Territory Under International Law
Understanding Acquisition in International Law sometimes being complex if
we compare with another sources in international law. Sometimes the acquisition of
territory in international law associated with the political and history matters,
however, the international law have some sources to determine the acquisition which
is recognized and legalized by international law and which acquisition of territory
which prohibited according to international law.
1. The acquisition by the State Under International Law
According to international law there are any method and theory through territory
aqcuisition it is include conquest, prescription annexation or cession, about conquest
and annexation was recognized as a method of territorial acquisition in the past but
has been deemed illegal under international las since the UN charter came into force
around the world in 1945. AccordingMochtar kusuma atmaja annexation is the
expansion to wideness the national territorial with force,(arms force) although the
annexation state or conquest state cannot acquire the territory with illegal basis and
have no reason to acquire right and claimed about one territory ,but in development of
international law sometimes can be accepted if another country recognized it or
according international law the conquest state also be able acquire the annexation
territorial in belligerent occupation, the most relevant method for Sabah is correct if
through cession and prescription .

39
According to Mochtar Kusumaatmadja prescription is implementing sovereignty of
de facto state with peace and for a certain time, not to terranulius but to the territory
under the sovereignty of other countries 66, also the difficulties to accept prescription
to be international legal basis ,there is no clarity presedent which show how long the
time was needed to implementing of sovereignty with de facto and peace.
Cession is the most of theory which use to maintaining to achieve territorial,
,definision of cession is, the grant of territorial area with peace settlement usually
implemented by agreement to finist the war althought in colonial era cession also
practically by authority from any territorial area67. International law generally
recognizes five modes of acquiring territorial sovereignty by a state, they are
1. Occupation
The doctrine of occupation depends intimately on the doctrine of discovery.
Occupation requires settlement of non-appropriated territory by a State, with the
intent of incorporating the territory into the national domain and exercising
sovereignty over it. Although European powers permitted simple discovery by other
European States into the eighteenth century, title claimed eventually required
66
Op.,cit
67
Ibid
40
occupation of discovered lands States often manifested occupation by installing a
defensible fort on the land to demonstrate their ability to safeguard the land from
indigenous societies and foreign invaders..68
When a particular territory is not under the authority of any other state, a state can
establish its sovereignty over such territory by occupation. The territory may never
have belonged to any state, or it may have been abandoned by the previous sovereign.
The PCIJ( permanent court of international justice) held that the occupation to be
effective must consist of the following two elements69
(i) intention to occupy. Such intention must be formally expressed and it must be
permanent.
(ii) occupation should be peaceful, continuous.
There mere act of discovery by one state is not enough to confer a title by
occupation. There are two requirements (i) the territory subject to claim must not be
under the sovereignty of any state ( terra nullius) (ii) the state must have effectively
occupied the territory.
2. colonization and doctrine of occupation
a. The Americas
68
John C. Duncan, Jr, 2012,Boston College International and Comparative Law Review, Boston
College Law School,Boston
69
http://internationallawu.blogspot.com/2012/11/acquisition-of-territorial-sovereignty.html accesed
on 1 september 2013
41
The European discovery of the Americas in the late fifteenth century
presented novel challenges to the European powers' pursuit of territorial acquisition
that would minimize conflicts with other European powers. The enduring legacy of
the boundaries drawn during the original European occupation of the Americas has
had an enormous effect on the identity and geography of the resulting States due to
the use by the former colonies of the doctrine of uti possidetis to formalize their
boundaries upon independence In many cases in the Americas, the European powers
relied on the doctrine of conquest to acquire new territory and assert authority over
indigenous societies; however, conquest alone was insufficient to establish title to the
lands70.
The doctrine of discovery permitted Europeans to take control of land in the
Americas by giving “title to the government by whose subjects, or by whose
authority, it was made, against all other European governments, which tide might be
consummated by possession.” If a European State discovered terra nullius, that State
had a claimed to the territory against all other European States and could take title to
the land by way of the doctrine of occupation. “It was a right which all [European
States] asserted for themselves, and to the assertion of which, by others, all assented.”
Hence, title could be established upon discovery by building some form of settlement
in the territory,After the European discovery of the Americas, Papal grants and the
doctrine of discovery were the initial means of providing rights of acquisition for
70
Ibid.
42
terra nullius, or “no man's land.” Terra nullius is land that is, at least in theory, not
possessed by another StateTo the European powers, it referred generally to land free
from the possession of other European powers.71.
The ability to claimed land through simple discovery quickly led to a
proliferation of claimeds by mere sightings from marine vessels. To address this
potential issue, beginning in the eighteenth century European States refused to
recognize tide by discovery alone. European leaders realized that to continue to avoid
mutual conflict, it would be necessary to condition title on something more than a
mere sighting by sea. Accordingly, occupation became a requirement for a legitimate
claimed of title. The doctrine of discovery remained important, though: discovery of
terra nullius permitted a State to claimed temporary title, adverse to other States, until
it was feasible to establish occupation the guiding requirement for recognition of
occupation was that there be “sufficient governmental control to afford security to life
and property.” In the early days of European colonization, this often required
building a defensible fort, but as the period continued, more was necessary. Often,
acquisition by occupation was possible only if the occupying power built and
maintained a colony. Once the territory was sufficiently occupied, it fell under the
sovereignty of the occupying power, and claimeds by other European States were
barred thereafter72.
71
Ibid.
72
Ibid.
43
b. Africa
Drawing from their experiences in colonizing the Americas, the European
powers applied the equal doctrines of acquisition to the colonization of Africa. The
Final Act of the Berlin Conference formalized the doctrines of acquisition. However,
the Final Act bound only the parties to the agreement and applied only to new cases
of occupation on the coasts of Africa. The Final Act enumerated three criteria for
effectuating title by way of the doctrine of occupation: (1) furnishing notice to
interested powers, (2) physical possession of the territory, and (3) establishment of a
government sufficient to protect the rights of citizen subjects. The third criterion
required the signatory States to establish authorities to ensure the freedom of trade
and transit. As in the Americas, international law permitted a period of time between
the original discovery and the establishment of effective occupation. When
necessary, reliance on the doctrine of cession--as opposed to the doctrine of conquest
commonly invoked during the colonization of the Americas--often effectuated the
transfer of tide from indigenous societies. Acquisitions under the doctrine of cession
involved the transfer of territory by treaty. Eventually, the doctrine of occupation, as
the European powers came to understand it, extended beyond the coastal regions and
governed the acquisition of territory in the African interior73.
c. Greenland
73
Ibid.
44
As recently as 1933, acquisition by occupation played an important role in
determining sovereignty over a portion of Greenland. In Legal Status of Eastern
Greenland, decided by the Permanent Court of International Justice (PCIJ), the court
determined that the degree of occupation necessary to exercise a claimed of title over
any land was measured by whether a State exerted “effective authority” over the
disputed territory. In the case, Norway claimeded title based on the doctrine
discovery, arguing that the territory at issue was terra nullius because Denmark
refrained from establishing manifest occupation, and enunciating its intent to occupy.
Denmark objected, claimeding that the reason it refrained from colonizing the land
was that the nature of the terrain itself prevented colonization. It claimeded that it
had indeed exercised sovereignty by way of continuous, peaceful, and undisputed
protective authority over the land: Denmark had explored the coasts, established a
trading settlement, and mentioned its ownership of Greenland in treaties with
Norway. On the basis of these contacts, Denmark proved effective authority and
convinced the PCIJ to rule in its favor, thereby defeating Norway's claimed of terra
nullius.74
3. Prescription
It means continued occupation over a long period of time by one state of territory
actually and originally belonging to another state. Requirements of prescription (i) the
possession must be peaceful (b) the possession must be public (iii) the possession
must be for a long period of time. Prescription is the acquisition of territory which
74
Ibid.
45
belonged to another state, where as occupation is acquisition of terra nullius.
However, international law doesnot prescribe any fixed period for
prescription75,Prescription indicates the acquisition of title by a long-continued and
undisturbed possession, although there is no general rule for governing the necessary
length of time to substantiate a prescription claimed. According to Jennings
prescription it is, where the actual exercise of sovereign rights over a period of time is
allowed to cure a defect in title; the case, that is to say, where the exercise of
sovereign rights either rests upon a demonstrably defective title or is even in origin
wrongful. In this kind of case, therefore, the title is acquired by means of an ‘adverse’
possession. this definition indicates that, as Jennings and Watts further declare,
“ state has been considered to be the lawful owner even of those parts of its territory
of which originally it took possession wrongfully, provided that the possessor has
been in undisturbed possession for so long as to create the general conviction that
the present condition of things is in conformity with international order.”76
Although prescription may allow a state to acquire title to territory that it has seized
by force, it requires the acquiescence of the former sovereign, where the possession
of the territory is accompanied by emphatic protests on the part of the former
sovereign, no title by prescription can arise for such title is founded upon the
acquiescence of the dispossessed state, and in such circumstances, consent of third
states is of little consequence. However, over a period of time recognition may

75
Op.,cit
76
Oppenheim's International Law: Volume 1 Peace
46
ultimately validate a defective title, although much will depend upon the
circumstances including the attitude of the former sovereign77.
4. The Doctrine of Cession
Acquisition under the doctrine of cession occurs when one State transfers land
to another State with treaty. It may occur by purchase,. It can also occur by
exchange, as evidenced by the 1890 cession by Great Britain of the island of
Helgoland to Germany in exchange for territory adjoining German East Africa.
Alternatively, a peace treaty may govern the transfer of land, such that the value-in-
exchange consists of the agreement to a permanent cessation of conflict. Cession
creates “the formal transfer from one state to another of the sovereignty over a
definite area of territory.” The doctrine of cession is the only mode of acquisition
that requires the relationship intentions of at least two States. The receiving State
78
must manifestly intend to receive the land and establish sovereignty. .
77
Seokwoo Lee , 2000, Continuing Relevance of Traditional Modes of territrial Acquisition in
International Law and a Modest,Connecticut Journal of International Law, , Connecticut, pg 9
78
John C. Duncan, Jr, 2012,Boston College International and Comparative Law Review, Boston College
Law School,Boston
47
Acquisition by cession takes place in favour of such later state. The cession of
territory maybe voluntary or maybe under compulsion as a result of war. The act of
cession maybe even in the nature of a gift, sale, exchange or lease. Cession is the
transfer of territory usually by treaty from one state to another. e.g France cession of
Louisiana to U.S in 1803, cession of Alaska. Purchases of Alaska by U.S (from
Russia in 1867).79
5.The Doctrine of Conquest or annexation
The doctrine of conquest is one of the earliest and most prominent doctrines
of acquisition. Title by conquest was perfectible if the conquering State declared an
intention to conquer, took the territory by force, and had the ability to govern it.
Most States in past centuries considered this a valid method of acquisition. The
European powers colonized Asian territories largely with the doctrines of conquest
and cession. The British acquisition of India, the Dutch acquisition of the Caribbean
islands known as the East Indies, and the Russian acquisition of most of northern and
central Asia are just a few examples80. Annexation also means to incorporate
(territory) into the domain of a country. Annexation is a unilateral act where territory
is seized by one state. It can also imply a certain measure of coercion, expansionism
79
Op.,cit
80
Ibid.
48
or unilateralism. e.g 1961 annexation of Goa. Annexation of Golan Heights by Israel
in 1967.81
The doctrine of conquest gave the victorious State sovereignty over the
conquered territories and their indigenous societies. Winning in battle alone,
however, was insufficient to transfer title. Annexation was also necessary to establish
sovereignty, and established an expectation that unambiguous artifacts of annexation
would be manifested. The conqueror must intend to govern the territory, have
effective possession and control, and no exiled government or allies thereof may exist
to contest control. International law recognized title as valid if the conquered State
was totally destroyed ., through a peace treaty granting cession, or if the failed State
acquiesced. .82.
Certainly up until World War II, international law recognized the acquisition
of territory following conquest. The right of conquest was the right of a military
victory to sovereignty over the conquered territory and its inhabitants. It is clear that
military victory alone does not lead to the acquisition of territory under international
law. Only when military victory is accompanied by certain other conditions is the
conqueror entitled to proceed with the act of annexation of some or all of the territory
of the defeated state. These conditions can be found in the following definition of
conquest, conquest constitutes an act of force by which, in time of war, a belligerent
occupies a part or the whole of the territory of the enemy State with the intention of
81
Op.,cit
82
Ibid.
49
extending its own national sovereignty over that territory. The control over the
conquered land has to be effective and recognized in the sense that neither the enemy
State to which the territory belonged, nor any of its allies, continues to fight for the
recovery of the lost possession83.
According to this commonly accepted definition, three criteria must be
satisfied in order for there to be a lawful conquest: first, there has to be a taking of
territory by force during war, and the victory must physically occupy a part or whole
of the territory of the enemy state in order to annex it; second, this occupation must
be done with the intention of extending its own national sovereignty over that
territory; and third, the control over the conquered territory has to be effective and
recognized. The general rule for the acquisition of territory by conquest is that only
the land actually occupied by the victory can be annexed.
In order to acquire territory by conquest, a state must demonstrate a
willingness to govern that territory, as the second condition specifies. This is usually
achieved by actual possession of the territory and some other manifestation of the
intent to incorporate the land as part of the conqueror's state. Taking actual possession
over a territory and bringing it within the administration of the state demonstrates an
intention on the part of the conquering state to acquire that territory, as does a formal
decree of annexation.” 84
83
Ibid.
84
Ibid.
50
As the third condition requires, as with all methods of acquiring title to
territory under international law, in order to have the right to acquire land following a
military defeat, the conqueror must be in effective control of it. “So long as the
occupying army is kept out of any portion of the territory by local forces, that portion
clearly has not been conquered.” Therefore in order to be in effective control, there
must be some degree of occupation of the land. The nature of the occupation required
will depend on the nature of the territory . The occupation will be considered
recognized if there is no real opposition to the conqueror's occupation of the territory.
Where there has been a cessation of conflict following a military conquest, a de facto
revival of peace relations is viewed as proof that the previous sovereign has
voluntarily surrendered the conquered territory and an acceptance of the status quo
post bellum. If however, enemy forces remain in the field, and are capable of a
serious attempt to regain the lost territory, the right of conquest does not arise. Not
only must resistance by the enemy state cease, but its allies must also have stopped
fighting in order to regain the lost territory. So, for example, German annexation by
conquest of Poland during World War II was considered to be unlawful because
Poland's allies continued the struggle against Germany 85.
6.Acretion
the definition it is a new territory is added mainly through natural causes to territory
already under the sovereignty of a state, acquisition by accretion takes place.

85
Ibid.
51
Accretion refers to the physical expansion of an existing territory through
geographical process.86
B. Legality of Sabah territory Under International Law
1. Overview of Cases Between Malaysia and Sulu Sultanate Claim over Sabah
Historicaly that from 1473 to 1658, Sabah, which used to be known as
Northeastern Borneo, belonged to the Sultanate of Brunei. In 1658, the Sultan of
Brunei ceded Sabah to the Sultan of Sulu in compensation for his help in settling a
civil war in the Brunei Sultanate. In 1761, Alexander Dalrymple, an officer of the
Bristish East India Company, entered into a lease agreement with the Sultan of Sulu
for the rental of Sabah which the British company used as a trading post. The rentals
consisted of arms provided to the Sultanate to resist the Spanish conquistadores and
money. In 1846, the west coast of Borneo was ceded to Britain by the Sultan of
Brunei making it a British crown colony. In the years that followed, a series of
transfers occurred with the leasehold rights over North Borneo or Sabah being
transferred to Alfred Dent who formed a company which later became the British
North Borneo Company In 1885, the United Kingdom, Spain and Germany signed
the Madrid Protocol which recognized the sovereignty of Spain in the Sulu
archipelago in exchange for the surrenderment by Spain of all its claims over North
86
Op.,cit
52
Borneo or Sabah in favor of the UK. In 1888, Sabah became the protectorate of the
United Kingdom which then was also occupying Malaysia as its colony87.
After World War II, instead or returning Sabah to the Sultanate of Sulu, the British
colonizers in Malaysia held among the people of Sabah to determine if they favored
Sabah staying on as a member of the Federation of Malaysia or joining the Sultanate
of Sulu. Expectedly, because the United Kingdom was still in control of Malaysia, the
result in favor of making Sabah a federal state of Malaysia. Thus, on 16 September
1963, North Borneo or Sabah was united with Malaya, Sarawak and Singapore,
forming the independent Federation of Malaysia.
The legal claim of the heirs of the Sulu Sultanate not only on the leasehold
agreement between the Sultanate and the North Borneo Company, a British company,
but also on a 1939 judgment rendered by the High Court of North Borneo upholding
the claims of the heirs of the Sultan of Sulu, long before the formation of the
Federation of Malaysia.
In other hand the Philippines claim to Sabah, on behalf of the Sultanate of
Sulu, was first made official during the term of President Diosdado Macapagal in
1962, before Sabah was officially made a state of Malaysia. The claim has become
dormant through the years, however the case continued to be a conflict on february
12, a group of men in army fatigues, believed to be armed, land on the shores of
LahadDatu.,Then February 14 Inspector-General of Police (IGP) Tan Sri Ismail Omar
identifies the group as comprising Filipinos. The group claims to be linked to the so-
87
Op.Cit
53
called 'Sulu Sultanate' from southern Philippines,Prime Minister Datuk Seri Najib
Tun Razak says, the Malaysian Government will try its best, including with
negotiations, to handle the issue of intrusion before ousting them from the are.
then in February 16 ,Home Minister Datuk Seri Hishammuddin Tun Hussein
confirms the group is not a militant or terrorist group but is in fact, a strong supporter
of the so-called Sulu Sultanate. He stresses the situation in Kampung Tanduo where
the group is located, is under control, continued in February 18 ,Hishammuddin says
that the governments of Malaysia and the Philippines are working closely to resolve
the conflict, through diplomacy without bloodshed. the following result on the
February 24 The Philippine Government sends a boat under humanitarian mission to
cary the 180 Filipino armed personnel, including 30 guards, who are holding up in
Lahad Datu, Sabah since Feb 12, then on Feb 26 the deadline to expel the group
passes but negotiations are still in progress.
Continued on Feb 28 ,the Malaysian Government is urged to negotiate directly
with a 'Sultan Jamalul Kiram III' in Manila to end the conflict of seizing the area in
Lahad Datu, Sabah which has extended for more than three weeks,the conflict was
happening on March 1 ,Two policemen, ASP Zulkifli Mamat and Sgt Sabarudin
Daud, are slain while 12 armed intruders are shot dead in a gunbattle between the
group and security forces in Kampung Tanduo,then continued on March 2 ,Six
policemen are killed in an ambush at the 'water village' of Kampung Sri Jaya
Simunul, Semporna. In the incident at 8pm, six of the armed intruders are also killed.
On March 3 The bodies of six policemen are taken out of the 'water village' as
54
security forces come to the rescue of 19 policemen in the village. The result is on
March 4 Philippine Foreign Affairs Under Secretary Jose Brillantes and Philippine
Ambassador to Malaysia J. Eduardo Malaya are reported to have met Defence
Minister Dr Ahmad Zahid Hamidi and Home Minister Datuk Seri Hishammuddin
Tun Hussein to seek a peaceful resolution.
The IGP stresses that security in Kunak, Sandakan and Semporna in Sabah is under
control.
Police release list of six police officers and men killed in the ambush in Semporna,
Sabah, The striking begining on March 5 (7am) ,Security forces mount operation as
they launch attack using F-18 and Hawk fighter jets on group of armed intruders at
Kampung Tanduo in Lahad Datu, Sabah, followed by army and police follow-up
operations. On (8am) The prime minister says the government must take appropriate
action to protect its dignity and the country's sovereignty as demanded by the people
as the efforts to avoid bloodshed in Lahad Datu was unsuccessful. The result on
(11am) The IGP, in a media conference with Armed Forces Chief Gen Tan Sri
Zulkifeli Mod Zin, describes the operation, 'Ops Daulat', as achieving the objectives
set. On (1.30pm) the home minister, in a press conference with the defence minister,
confirms the security forces did not suffer casualties or injuries. Then on (4pm) The
IGP holds a press conference to announce that follow-up operation and search are
55
ongoing as the police believe the enemy is still in the area. As at 7pm, the police have
not confirmed the total number of armed intruders dead, injured or captured 88.
2. Sabah Acquisition Under International Law
A nation state can acquire sovereignty territory if the sovereignty is transfer or
ceded by another sovereignty. Sabah territory is one of the Malaysia territory which
agree to join into Malaysia in 16 September 1963, Acquisition under the doctrine of
cession occurs when one State transfers land to another State with treaty 89 According
to the agreement between English and Sulu Sultanate on 28 january 1878. between
Alfred dent, Baron von over back English and sultan Sulu, Sabah territory was grant
to British
British version
“ ... hereby grant and cede of our own free and sovereign will to
Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London...and
88
Chronology of armed group intrusion in Lahad Datu - Latest - New Straits Times
http://www.nst.com.my/latest/chronology-of-armed-group-intrusion-in-lahad-datu-
1.229301#ixzz2UE4fnQyD
89
School,Boston, 2012
56
assigns for ever and in perpetuity all the rights and powers belonging to us over all
the territories and lands being tritutary to us on the mainland of the island of Borneo
commencing from the Pandassan River
on the north-west coast and extending along the whole east coast as far as the
Sibuco River in the south and comprising amongst other the States of Paitan, Sugut,
Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and all the other territories
and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco
river with all the islands within three marine leagues of the coast. ”
Sulu version
“ ...do hereby lease of our own freewill and satisfaction to...all the
territories and lands being tributary to [us] together with their heirs, associates,
successors and assigns forever and until the end of time, all rights and powers which
we possess over all territories and lads tributary to us on the mainland of the Island
of Borneo, commencing from the Pandassan River on the west coast to Maludu Bay,
and extending along the whole east coast as far as Sibuco River on the south,..., and
all the other territories and states to the southward thereof bordering on Darvel Bay
and as far as the Sibuco River, ..., [9 nautical miles] of the coast."
”
57
If the British version of 1978 treaty is adopted, is clear that sovereignty over
Sabah was trasfered in 1978 by the Sultanate of Sulu to the British, which later
transfered the Sabah to the federation of Malaysia ,
Based on Uti Possidetis principle Malaysia have legitimate Authority to hold
Sabah, because Malaysia historically is British colony, the right theory to categoryzed
sabah acquisition is with cessi theory , because Cession is the most of theory which
use to maintaining to achieve territorial,definision of cession it's the grant of
territorial area with peace settlement, usually implemented by agreement to finist the
war, althought in colonial era cession also practically by authority from Colonial
government, it is very match with case between Sulu sultanate and British. The
territory transferred “voluntarily” by Sulu Sultanate to British in a treaty. Because
that this is can categoryzed as acquisition by cession ,
3.Legality of Sabah based on Uti Possidetis theory
end of a conflict, unless otherwise provided for by treaty; if such a treaty does not
war, then the principle of uti possidetis will succeed. Originating in Roman law, the
58
you possess")90 .
There are several reasons why Sabah is legitimate territory of the country of
Malaysia. , the legitimacy of the Malaysian state Sabah is strong, because related to
legal history Malaysia it is continued administration of British rule. According to Uti
Posidetis theory In international law, there is no exception that reduce the ownership
of Sabah, Sabah part of the territory as a predecessor British colonization, which
Malaysia inherited as a successor state. If it were, Sabah placed on the theory of uti
posidetis, based on an international agreement document between the Government
colonial British and the Sulu,the ownership of Sabah Malaysia has a definite legal
status. The facts of history can be used as a source of substantive law in determining
the boundaries of sovereignty.91
4. Right of Self-defence in International Law
90
91
Jawahir Thontowi ,Bilateral Cooperation Between Government of Indonesia and Malaysia, Journal
Unisia ,2012
59
Malaysia launched an all-out assault on the Sulu group on Tuesday morning,
using fighter jets to rain down bombs on Kampung Tanduo where the Sulu group had
been hiding. After the airstrike, ground troops moved in, going from door-to-door and
advancing slowly over the uneven terrain surrounding the coastal village to hunt
down the armed militants.
Based Article 51 of the UN Charter states the following: “Nothing in the
present Charter shall impair the inherent right of collective or individual self-defence
if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and
security. Measures taken by members in exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take
at any time such action as it deems necessary in order to maintain or restore
international peace and security”92.
International law recognizes a right of self-defence, as the International Court
of Justice (ICJ) affirmed in the Nicaragua Case on the use of force that article 51
acknowledges as general right, and the case of diplomatic incident between the
United States and the United Kingdom over the killing on some US citizens engaged
in an attack on a British colony. The called Caroline case . Established that there must
exist ,a necessity of self-defence, instant, overwhelming, leaving no choice of means,

92
Un Charter Art 51
60
and no moment of deliberation, and furthermore that any action taken must be
proportional, according the act justified by the necessity of self-defence, and must be
limited by that necessity, and kept clearly within it.93
In Sabah case the malaysia use self defence without proportional and
neccesity principle which caused many victim from both party. Because malaysia use
certain of military tools but, according to malaysian government they use police
officer to taking force in battle field with Sulu Gunmen , however Malaysian justified
they use the self defence right to defend sabah territory from Sulu Gunmen according
their jurisdiction.
5. Sabah 1963 Self Determination
Self determination it is the right to the right of a people to determine its own
destiny. In particular, the principle allows a people to choose its own political status
and to determine its own form of economic, cultural and social development.
Exercise of this right can result in a variety of different outcomes ranging from
political independence through to full integration within a state. The importance lies
in the right of choice, so that the outcome of a people's choice should not affect the
existence of the right to make a choice.94. In January 1942 twenty-six states signed the
Declaration by United Nations, which accepted the principles of self determination .
93
http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htm accesed on 18 september 2013
94
: http://www.unpo.org/article/4957#sthash.TlC8sBh5.dpuf
61
The ratification of the United Nations Charter in 1945 at the end of World War II
placed the right of self-determination into the framework of international law and
diplomacy.
Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: "To
develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace."95
Article 1 in both the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Both read:
"All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development."96
The United Nations Universal Declaration of Human Rights article 15
states that everyone has the right to a nationality and that no one should be arbitrarily
deprived of a nationality or denied the right to change nationality.97
In 1963 Sabah joined Malaya, Sarawak and Singapore to form Malaysia, after
that Malaysia continued paying an annual tax of RM5,300 to the Sulu sultanate on the
basis of the sultanate ceding the Borneo state. In the fact,In a referendum over sabah
95
^ "United Nations Charter". Un.org
96
^ "United Nations Charter". Un.org
97
Vita Gudeleviciute, Does the Principle of Self-determination Succeed over the Principle of Territorial
Integrity?, International Journal of Baltic Law, Vytautas Magnus University School of Law, Volume 2,
No. 2 (April 2005).
62
who organised by the Cobbold Commission in 1962, the people of Sabah voted to
join Malaysia. This is definetely legal status for Malaysia as owner of Sabah.
Therefore The legality of Sabah is very legitimate under international law
perspective, from the uti possidetis theory malaysia acquire sabah territory from
english autority which come into cession from sultanate Sulu , according into 1978
agreement. Malaysia also can take force to the sulu gunmen ,because they entering
into sabah territorial which including jurisdiction of Malaysia federal state, althought
the force is ignore necesety and proportionality principle. Additionaly according 1963
self determination ,Sabah was choose to join under malaysia authority , it can make
conclusion that Legality of Sabah is highly legitimate under Malaysian authority.

63
CHAPTER IV
LEGALITY SULTAN SULU CLAIM OVER SABAH TERRITORY BASED
ON INTERNATIONAL LAW PERSPECTIVE
A. Legal Implication of Territorial Sovereignty Under International law

64
According to Thomas D Grant, the State is an association of a considerable
number of men living within a definite territory, constituted in fact as a political
society and subject to the supreme authority of a sovereign, who has the power,
ability and means to maintain the political organization of the association, with the
assistance of the law, and to regulate and protect the rights of the members, to
conduct relations with other states and to assume responsibility for its acts, in
additionaly the principle of territorial sovereignty applies to any state territory and it
protects the area located within a State's territory. States are prohibited to interfere
with the area located in the territory of another State. This certainly holds true if the
conduct is attributable and if it inflicts (severe) damage on the integrity or
functionality of foreign area. Moreover, States have the obligation not to allow
knowingly their territory to be used for acts that violate the territorial sovereignty of
another State.98
Sovereignty is the quality of having independent authority over a geographic
area, such as a territory99 It can be found in a power to rule and make laws that rests
on a political fact for which no pure legal definition can be provided. In theoretical
terms, the idea of "sovereignty", historically, from Socrates to Thomas Hobbes, has
always necessitated a moral imperative on the entity exercising it.
For centuries past, the idea that a state could be sovereign was always
connected to its ability to guarantee the best interests of its own citizens. Thus, if a
98
Thomas D. Grant , 1999,DEFINING STATEHOOD: THE MONTEVIDEO CONVENTION AND ITS
DISCONTENTS, Columbia Journal of Transnational Law
99
sovereignty (politics)". Encyclopædia Britannica. Retrieved 5 August 2010.
65
state could not act in the best interests of its own citizens, it could not be thought of as
a “sovereign” state.100
The concept of sovereignty has history from the time of the Romans through to
the present day. It has changed in its definition, concept, and application throughout,
especially during the Age of Enlightenment. The current notion of state sovereignty
contains four aspects consisting of territory, population, authority and recognition. 101
According to Stephen D. Krasner, the term could also be understood in four different
ways:
1.domestic sovereignty
actual control over a state exercised by an authority organized within this
state,
2.interdependence sovereignty
actual control of movement across state's borders, assuming the borders exist,
3.international legal sovereignty
formal recognition by other sovereign states,
4.Westphalian sovereignty
lack of other authority over state than the domestic authority (examples of
such other authorities could be a non-domestic church, a non-domestic political
100
Bateman, C.G. (15 February 2011). Nicaea and Sovereignty: Constantine's Council of Nicaea as an
Important Crossroad in the Development of European State Sovereignty. University of British
Columbia. pp. 54–91.
101
Biersteker, Thomas; Weber, Cynthia (1996). State Sovereignty as Social Construct. Cambridge
Studies in International Relations 46. Cambridge University Press
66
organization, or any other external agent) 102.Often, these four aspects all appear
together, but this is not necessarily the case – they are not affected by one another,
and there are historical examples of states that were non-sovereign in one aspect
while at the same time being sovereign in another of these aspects, According to
Immanuel Wallerstein, another fundamental feature of sovereignty is that its a claim
that must be recognized by others if there is to have any meaning: "Sovereignty is
more than anything else a matter of legitimacy that requires reciprocal recognition103.
B. Legality basis of Sultan Sulu claim over Sabah under International Law
1.Sulu Sultanate Claim based on Historical inheritance land

The Sultanate sulu claim beginning when Malaysia was formed and given
independence by the British Government in 1963. The Sultanate of Sulu and North
Borneo was also given by the British Government the 'Letter of Administration to
Sabah, acknowledging all the property of the Sultanate of Sulu over Sabah in 1939.
However Another legal evidence of the Sabah ownership is found in the case filed by
102
Krasner, Professor Stephen D. (2001). Problematic Sovereignty: Contested Rules and Political
Possibilities
103
Ibid
67
Indonesia to the United Nations to claim part of Sipadan and Sabah against
Malaysia104 .
ICJ decision Ligitan and Sipadan Island (Judgement) 17 December 2002
Article III stipulated as follows:
All islands to the north and east of the said line and all islands and rocks
traversed by the said line, should there be any such, shall belong to the Philippine
Archipelago and all islands to the south and west of the said line shall belong to the
State of North Borneo." Art 107. “As regards transmission of the United Kingdom's
title to Malaysia, the latter states that, by the Agreement of 9 July 1963 between the
Governments of the Federation of Malaya, the United Kingdom of Great Britain and
Northern Ireland, North Borneo, Sarawak and Singapore, which came into effect on
16 September 1963, North Borneo became a State within Malaysia under the name of
Sabah.
On 9 July 1963 the Federation of Malaya, the United Kingdom of Great
Britain and Northern Ireland, North Borneo, Sarawak and Singapore concluded an
Agreement relating to Malaysia. Under Article I of this Agreement, which entered
into force on 16 September 1963, the colony of North Borneo was federated with the
existing States of the Federation of Malaya as the State of Sabah.
104
http://globalnation.inquirer.net accesed on 21 september 2013
68
The UN ruling under ICJ explicitly stated that Indonesia has no sovereign
rights over Sipadan and Sabah because it is owned by Malaysia. Therefore, is
conclude Malaysia acknowledge have authority and ownership from the Sultanate of
Sulu over Sabah, the UN sanctions over Sipadan and Sabah stating that the Malaysia
is the legitimate owner of Sabah, more over the British Government was gave
authority over the ownership of Sabah to Malaysia.and it is categoryzed as cession.
The claim over Sabah based on historycally by Sultanate Sulu it is invalid in the
international law.
2.Sulu claim Based on Lease Treaty between Sulu Sultanate and British
According the translation of the 1878 Agreement between the Sri Paduka
Maulana Al Sultan Mohamet Jamal Al Alam Bin Sri Paduka Al Marhom Al Sultan
Mohamet Fathlon Sultan of Sulu and British Gustavus Baronde Overbeck of Hong
Kong and Alfred Dent Esquire of London:
A.We Sri Paduka Maulana Al Sultan Mohamet Jamal Al Alam Bin Sri Paduka Al
Marhom Al Sultan Mohamet Fathlon Sultan of Sulu and the dependencies thereof on
beha lf of ourselves our heirs and successors and with the consent and advice of the
Datoos in council assembled hereby grant and cede of our own free and sovereign
69
will to Gustavus Baronde Overbeck of Hong Kong and Alfred Dent Esquire of
London as representatives of a British Company co-jointly their heirs associates
successors and assigns for ever and in perpetuity all the rights and powers belonging
to us over all the territories and lands being tritutary to us on the mainland of the
island of Borneo commencing from the Pandassan River on the north-west coast and
extending along the whole east coast as far as the Sibuco River in the south and
comprising amongst other the States of Paitan, Sugut, Bangaya, Labuk, Sandakan,
Kina Batangan, Mumiang, and all the other territories and states to the southward
thereof bordering on Darvel Bay and as far as the Sibuco river with all the islands
within three marine leagues of the coast.
B In consideration of this grant the said Baron de Overbeck and Alfred Dent promise to
pay as compensation to His Highness the Sultan Sri Paduka Maulana Al Sultan
Mohamed Jamal Al Alam his heirs or successors the sum of five thousand dollars per
annum.
C.territories are hereby declared vested in the said Baron de Overbeck and Alfred Dent
Esquire co-jointly their heirs associates successors or assigns for as long as they
choose or desire to hold them. Provided however that the rights and privileges
70
conferred by this grant shall never be transferred to any other nation or company of
foreign nationality without the sanction of Her Britannic Majesty’s Government first
being obtained.
D.In case any dispute shall arise between His Highness the Sultan his heirs or successors
and the said Gustavus Baron de Overbeck or his Company, it is hereby agreed that
the matter shall be submitted to Her Britannic Majesty’s Consul-General for Borneo.
E. Gustavus Baron de Overbeck on behalf of himself and his Company further promises
to as ist his Highness the Sultan his heirs or successors with his best counsel and
advice whenever His Highness may stand in need of the same.
F.Written in Lipuk in Sulu at the Palace of His Highness Mohamet Jamal Alam on the
19th Moharam A.H. 1295, answering to the 22nd January, A.D. 1878.105
105
Credit to http://images.tvnz.co.nz Accesed on 22 september 2013
71
Under contract Clause A, it says in one line “grant and cede of our own free
and sovereign will” and in another “assigns for ever and in perpetuity all the rights
and powers belonging to us over all the territories and lands being tritutary to us”.
In Clause B, it says “In consideration of this grant the said Baron de Overbeck
and Alfred Dent promise to pay as compensation to His Highness the Sultan Sri
Paduka Maulana Al Sultan Mohamed Jamal Al Alam his heirs or successors the sum
of five thousand dollars per annum.” Again, basic offer, acceptance and consideration
principle in a contract. This clearly shows that the Sultan of Sulu willingly
surrendered all his sovereign rights and powers on the land over to North Borneo
Company for a then handsome sum of $5000.00.. It’s given to Baron de Overbeck
and Alfred Dent Esquire.
It is legitimate evidence that sabah authority was cessed to English from
sultanate Sulu because of the treaty contract of english version. Then according to uti
possidetis Malaysia is the legitimate succesor from English authority predecessor,
because acknowledge malaysia is come from British colony,.
If we adopted Mochtar Kusumaatmadja theory so the agreement and treaty
between Sulu Sultanate and British Trade Union may not include as international
treaty law because there is the party come from legal person (British Trade Union) .Is
clearly that to enter international treaty, the treaty must made by international legal
subject which member of international society, according to Mochtar Kusumaatmadja

72
this is not include as international treaty, if the treaty made and beginning in the past
era betwen big Trade Union. for example East India Company and Verenegde Oost
Indische Compagnie with the head of native people, also not included as international
treaty if in the contract made between a state with a person (natural person) or
between any state with any legal person, for example United States oil company ,
contract between a state with oil company .This is not include as international treaty
law ,because regulated with the state party national law and can be concessions etc.
3.Claim of Sultan sulu to the Malaysian soverignty state under International Law
Sulu is a region of the Philippines without any national sovereignty, bassicaly
cannot claim Sabah which is part of Malaysia a sovereign nation. According
international customary law only a country can claim another country or a part of
another country. therefore its means Sulu has no locus standi to claim Sabah. 106,
According to Victor Prescott, a classification of dispute in the region occur if entered
on four (4) groups below:
a. Positional dispute, a dispute is a result of differences interpretation of legal
documents or a change in locationa change in the physical signs.
106
http://www.freemalaysiatoday.com/category/opinion/2013/03/23/sulu-claim-%E2%80%93-a-sad-
tragic-lie/
73
b. Territorial dispute, is a dispute which occurs when two or more countries claiming
the equal territory as the territory or part of the territory. This happens due to
historical reasons or geographical interests.
c. Functional dispute, is a dispute of the mobilization of people and the goods, in the
absence of safeguards that are too tight.
d. Transboundary resource disputes, disputes that arise are due to exploitation of
natural resources by other countries and harm other countries in border.107
Of the four models of the dispute, is almost hard to put the case Sabah into
conflict with one of the motives because the subject of dispute it is between sulu as
non;state and Malaysian as sovereignty state.
Then the International Court of Justice (which is an organ of the United
Nation) had recognized and confirmed Sabah as part of Malaysia when it made a
verdict in 2002 that Sipadan and Ligitan islands belonged to Malaysia (and not
Indonesia). ICJ decision Ligitan and Sipadan Island (Judgement) 17 December 2002
Article III stipulated as follows:
All islands to the north and east of the said line and all islands
and rocks traversed by the said line, should there be any such, shall
belong to the Philippine Archipelago and all islands to the south
and west of the said line shall belong to the State of North Borneo."
Art 107. “As regards transmission of the United Kingdom's title to
Malaysia, the latter states that, by the Agreement of 9 July 1963
between the Governments of the Federation of Malaya, the United
Kingdom of Great Britain and Northern Ireland, North Borneo,
107
Op cit
74
Sarawak and Singapore, which came into effect on 16 September

1963, North Borneo became a State within Malaysia under the name
of Sabah.108
penjelasan
On 9 July 1963 the Federation of Malaya, the United Kingdom of Great
Britain and Northern Ireland, North Borneo, Sarawak and Singapore concluded an
Agreement relating to Malaysia. Under Article I of this Agreement, which entered
into force on 16 September 1963, the colony of North Borneo was federated with the
existing States of the Federation of Malaya as the State of Sabah.
CHAPTER V
108
http://www.icj-cij.org/docket/files/102/7714
75
CONCLUSION
A.Conclusion
International law prohibits use of force. However, Malaysian claim that as part of self
defense, which allows states to protect or rescue their nationals by armed forces in
their territory. Additionaly the impact of force must be necessary minimum. Under
international law, the forceful actions of states are limited by the principle of
necessity and the principle of proportionality. Necessity is a component of legitimate
self-defense and requires that any forceful action must be by way of last resort.
Proportionality is the principle that the use of force should be in proportion to the
threat or grievance provoking the use of force. However based on the fact in this
conflict Malaysian use excessive power of force which contradict with necessity and
proportionality principle. Therefore the Gunmen of sulu could not be categoryzed as
beligerent because According to geneva convention there is no a measure of orderly
administration by that group in the area it controls and explicit recognition by the de
jure government of the insurgents' belligerency, so automatically sulu gunmen have
not obligation, right ,also recognition as beligerent party. Based on historically, Sabah
was part of the Sulu Sultanate. Nevertheless, the situation of Sabah and the
Philippines has changed since the colonisation with the cession theory, the status of
Sabah territory has changed from british's lease territory to the malaysian federation
territory in this case, the claim of Sabah by the sultan of Sulu could be seen as a loss
sovereignty because of the cession.

76
The legal implication of Sabah territory it is under Malaysian jurisdiction, therefore
Malaysian can use certaint kind of action to enforce the Sulu Gunmen however is
contradict with effectiveness and proportionality principle because using certaint kind
of military tools although argument on Malaysian government they use police officer
B.Recomendation
The Philippines and Malaysia should agree on a third party to carry out an inquiry,
which should precede any pacific dispute settlement, specifically negotiation,
mediation, good offices and conciliation. Under the United Nations Charter,
international law requires the pacific settlement of disputes by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, use of regional agencies or
arrangements, or other peaceful means of the parties’ own choice. Under the 1907
Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and
fact finding can be used “to facilitate a solution disputes by investigate the facts by
means of an impartial and conscientious investigation.
Asean as a group of state in south east asia need certain kind body which is
maintaining the stability and security , purpose to make an for maintaining security
77
and stability in the Southeast Asian region, for example in the UN Security Council,
although contrary to the principle of non-intervention, because the ASEAN way is
irrelevant to the conflict in the modern era and do not give enough punishment to
perpetrator
BIBLIOGRAFI

Conflict of Sabah Territory Between Sulu Sultanate and Malaysia in International Law Perspective

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Conflict of Sabah Territory Between Sulu Sultanate and Malaysia in International Law Perspective

Uploaded by

Copyright:

Available Formats

1

CONFLICT OF SABAH TERRITORY BETWEEN SULU SULTANATE AND

International law is maintaining a significant role today, especially in public

indicates that national law is stronger than international law.

International law it is can distinguishable from international politics, the

image of international law is conveyed by legal positivist writing, in which its

arguments based on philosophy, theology, science, or morality in favour of an

argument founded on the contents of the formal sources of international law. 1

According to Mochtar Kusumaatmadja, international law is all of principle or norm

themselves to observe, and therefore, do commonly observe in their relation with

consent of international community.2. National law itself has sovereignty of the

may be apply in conflict between Sulu Sultanate and Malaysia in Sabah.

Borneo , before it was designated a British protectorate in the 1800s. The former

Then on 1 March 2013 there was an exchange of fire and a number of

arms to kill people of Sultanate Sulu, it is contradict with Necessity and

proportionality principle of international humanitarian law. In additionaly From an

IHL perspective, the principles of responsible command and superior responsibility

principle of superior responsibility, superiors are criminally responsible for war

crimes committed by their subordinates6.. Further, attacks on military objects must

Every action must be taken by commanders to avoid civilian causalities . The

principle of proportionality has become part of customary international law in

international and non-international armed conflicts7. It is also contradict with the

effects of military operations..8.

conduct committed by non-nationals, against non-nationals, for violations of

territorial enforcement jurisdiction to arrest, detain, extradite, prosecute and/or punish

these individuals if they are located within their territory 9.

on 16 september 1963. English grant the territory to the Malaysian government,

Historically the former territory of North Borneo was leased by British, in

formation of the Federation of Malaysia.11

Philipina agreed in 1977 not to claim.,12

A nation state can acquire sovereignty territory if the sovereignty is transfer or

transfered the Sabah to the federation of Malaysia14, although according to Mochtar

Based on The Agreement dated 9 July 1963 between the Federation of

Sarawak and Singapore relating to Malaysia, which entered into force on 16

existing States of the Federation of Malaya as the Sabah.

ancestral right can no longer withhold the dominant principle of self-determination in

the modern context of international law.

In perspective of jurisdiction, Malaysian have jurisdiction to take enforce on

jurisdiction comprises a generally power to claimed over any matter.

because of that reason the author is pretension to make a research on conflict

of Sabah territory between Sulu Sultanate and Malaysia in International law

international law perspective ?

by Sultanate of Sulu based on international perspective, by conducting this research

same thing fault in the future.

recognition in international law to a certaint territorial.

D. Definition of Technical terms

clear, ascertainable and non-retrospective. It requires decision makers to

The principle can be varyingly expressed in Latin phrases such as Nullum

It is persons taking a direct part in conflict in non-international armed

conflicts are sometimes labelled “combatants”. is only used in its generic

or prisoner-of-war status, as applicable in international armed conflicts . Its

in conflict; civilians who take a direct part in conflict; 18

1). Territory acquisition

territory aqcuisition it is include conquest, prescription annexation or cession, about

conquest or annexation was recognized as a method of territorial acquisition in the

into force around the world in 1945. AccordingMochtar Kusumaatmadja annexation

development of international law sometimes can be accepted if another country

prescription, cession, conquest or anexation, also acretion

According to Mochtar Kusumaatmadja prescription is implementing

difficulties to accept prescription to be international legal basis to acquire territory ,

implementing of sovereignty with de facto and peace. 20 In additionaly Prescription

indicates the acquisition of title by a long-continued and undisturbed possession,

substantiate a prescription claimed21