LEGITIMACY: The International Court of Justice has clearly emphasised the sovereignty of Sabah under Malaysia, write Rahmat Mohamad, Mohd Hazmi Mohd Rusli and Muhamad Azim Mazlan
THE recent Lahad Datu incident must be only seen as nothing more than a mere exercise of sovereign right by the Malaysian government over her territorial jurisdiction.
United Nations Secretary-General Ban Ki-moon made an unwarranted remark that Malaysia must enter into peaceful negotiations since the party on the other side has failed to fulfil the requirement of a state personality under international law.
It is well within the legitimate rights of Malaysia to demand unconditional surrender of the Sulu intruders and their weapons.
International law never disregards what is lawfully justified when it comes to the paramount duty of the state to protect her citizens, particularly where their lives are in jeopardy and to restore peace and public order within its sovereign jurisdiction.
The claim by the Sulu sultanate must be put to rest and the subterfuge brought about by international and local media and individuals cleared.
The International Court of Justice (ICJ), in the case of the territorial dispute over the islands of Sipadan and Ligitan between Malaysia and Indonesia, clearly emphasised the sovereignty of Sabah under Malaysia.
History of Sabah and Sulu sultanate
Sabah was once under the rule of the Brunei sultanate, whose empire sprawled across Borneo. In 1658, the Sultan of Brunei ceded the northern and eastern portions of Borneo to the Sultan of Sulu in compensation for the Sulus' assistance in repressing civil war that erupted in Brunei at that time.
The Sulu sultanate was established in 1457 by Johor-born Arab explorer and religious scholar Sayyid Abu Bakr Abirin. The capital of this sultanate was on the island of Jolo, located more than 150km east of Sabah.
At its peak in the 18th century, the influence of the Sulu sultanate extended beyond the territory of modern day Sabah to include the southern Philippines as well.
Alongside Brunei, the Sulu sultanate used to rule this part of the Malay archipelago.
The advent of the colonial powers of Britain and Spain saw the gradual depletion of the influence of the Sulu sultanate. While the rest of the Philippines fell under Spanish dominion, the British took the initiative to gain power in Sabah.
Subsequent to the cessation of the Philippines by Spain to the American colonial government, the Sulu sultanate was ultimately annexed on March 10, 1917 as a province within the Philippines.
The last sultan recognised by the Philippine government was Sultan Mohd Mahakuttah A. Kiram who reigned from 1974 to 1986. There are currently three contenders to the throne, namely Muedzul Lail Tan Kiram, Jamalul Kiram III and Ismael Kiram II.
Sabah and the Sulu sultanate
On Jan 22, 1878, an agreement was signed between the Sulu sultanate and two British agents, Alfred Dent and Baron von Overback, which provided that North Borneo was either ceded or leased to the British commercial syndicate headed by these two British agents, in return for payment of 5,000 Malayan dollars per year.
The lease was increased to 5,300 Malayan dollars a year when the leased/ceded territory was extended to include additional islands along the coast of North Borneo from Banggi Island to Sibuku Bay.
There were discrepancies on the interpretation of this treaty as the British version applied the word "grant and cede" while the Sulu version adopted the word "lease in perpetuity".
By virtue of the findings of the Cobbold Commission, North Borneo joined the Federation of Malaysia in 1963 and was renamed "Sabah". Until today, the Malaysian embassy in Manila continues to pay nominal "cession money" to the heirs of the Sulu sultanate, amounting to RM5,300 (73,940 Filipino pesos) per year.
If the British version of the treaty is adopted, then it is clear that the Sulu sultanate had ceded Sabah to the British. If the Sulu version is adopted, then, the word "lease" would come into the picture.
When Hong Kong was leased to Britain by China, the sovereignty over Hong Kong remained with Britain until the end of the lease in 1997, which saw Hong Kong placed under Chinese rule.
It is different with the Sabah case as this lease is "in perpetuity". Even if such a lease exists, the sovereignty over Sabah would be with Malaysia so long as Malaysia fulfils the payment of RM5,300 to the Sulu heirs. The Sulu heirs have no right to refuse the lease as it takes effect "in perpetuity".
The Philippines claimed sovereignty over Sabah when Sabah joined Malaysia in 1963 but agreed in 1977 not to pursue the claim.
In 2008, Sabah Chief Minister Musa Aman saw the initiative made by Nur Misuari, a leader of the Moro National Liberation Front (MNLF) to take Sabah to the ICJ was a non-issue. Neither the MNLF nor the Sulu sultanate possesses an international legal personality.
International legal personality under international law
Article 34 of the ICJ Statute states that only states may be parties in cases before the court. This is the prerequisite statutory requirement set by the court for a case to be brought before them.
On that note, it is important to first determine the legal personality status, i.e. the statehood status of parties to international claims. Confirmation of this status reflects the sovereignty of the state on its own territory.
The Montevideo Convention on the Rights and Duties of States is the basic document to be referred to in the issue of statehood status. Article 1 specifies the criteria of statehood that must be fulfilled conjunctively.
First, a state must have a permanent population. Minimum number of inhabitants is insignificant to satisfy the requirement.
Second, for a state to exist, there must be a defined territory.
Third, for a state to satisfy this requirement a government must be an "effective" government that exercises some degree of control over the permanent population.
Lastly, a state must have the capacity to enter into relations with other states.
Only a sovereign that has achieved the status of international legal personality may make such a claim of sovereignty. In short, both MNLF and the so-called Sulu sultanate do not possess international legal personality to qualify them to take the Sabah claim to ICJ.
Rahmat Mohamad is secretary-general of new Delhi-based Asian-African Legal Consultative Organisation (Aalco) while Mohd Hazmi Mohd Rusli and Muhamad Azim Mazlan are lecturers with Universiti Sains Islam Malaysia
Tomorrow: Jamalul Kiram's claim of Sabah just a reminiscence of a 'long-lost' sovereignty
"The large crowd that turned up to receive the bodies of two policemen killed by terrorists in Semporna last week. Malaysians are angered over the intrusion into Sabah by Sulu gunmen". Pic by Sairien Nafis
Rahmat
bin Mohamad, Mohd Hazmi bin Mohd Rusli, Mohd Azim bin Mazlan, ‘We Have
Sovereign Rights Over Sabah’ New Straits Times (March 2013)
