It has been almost three months since the invasion of the Royal Sulu Army (RSA) took place in Lahad Datu, Sabah. The Malaysian Armed Forces have successfully protected the sanctity of Malaysia’s sovereignty by combating this unwarranted intrusion.

Nevertheless, despite credible and strong arguments put forth by legal experts that Sabah belongs to Malaysia, ‘Sultan’ Jamalul Kiram maintained his stand that Sabah is his ancestral territory of the Sultanate of Sulu. It is therefore important to find an answer to this question: Can an ancestral claim supersede self-determination under international law

When the Sipadan-Ligitan case was brought to the International Court of Justice (ICJ), the Philippines made an application for permission to intervene in order “to preserve and safeguard the historical and legal rights of the Government of the Republic of Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo”.

In short it is a claim to a territory that was administered as a British dependency, which later joined Malaysia in 1963 upon its own accord and legitimised by the United Nations. The intervention was rejected by the majority of the judges in the ICJ on the basis that Philippines has failed to demonstrate and has not discharged its obligation to convince the Court that specified legal interests may be affected in the particular circumstances of the case.

The decision by Justice Thomas Franck in Sipadan-Ligitan case reiterated the importance of self-determination principle in the development of post-colonial international law. In that case he articulated the point on self-determination of the Sabah people to join Malaysia in 1963 through a legitimate process under the auspices of the United Nations (UN).

Self-determination

Justice Franck further elaborated on the impact of self determination in the modern era and the traditional right to territory vested in rulers of States. Apart from the decisions of ICJ, universal treaty law, state practice and opinio juris must be taken as strong fundamental basis for the principle of self-determination to operate.

Article 1 of the UN Charter underlines the importance of the principle of self-determination as one of its purposes that is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This principle is also reflected in the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights.

Over the years, treaty laws have been developed and re-enforced in volumes through resolutions of the United Nations General Assembly. This involved a few General Assembly (GA) resolutions namely the GA resolution 637 (VII) adopted on 16 December 1952, an early recognition that “every member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self-determination”.

GA resolution 2131 (XX) on Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, adopted by 109 countries without dissent on December 21, 1965, declared that “all states shall respect the right of self-determination and independence of people and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms”.

The principle of self-determination was further included among the “basic principles of international law” set out in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” adopted as the Annex to resolution 2625 (XXV) on 24 October 1970.  This document reiterated that all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development. In addition, every State has the duty to respect this right in accordance with the provisions of the Charter.

Upholding Sabah’s Legitimacy in international law

In the Sipadan-Ligitan case, Justice Franck succinctly described the self determination of the people in Sabah where it was expressed wish of the majority of the people of the territory in a 1963 election. The then Secretary General of the United Nations, U Thant, was entrusted under the Manila Accord of July 31, 1963 with the task of ascertaining the wishes of the people of North Borneo. It was reported that the majority of the people of North Borneo had given serious and thoughtful consideration to their future and “had concluded that they wish to bring their dependent status to an end and to realise their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives”.

Britain filed its last report to the United Nations on North Borneo in 1963 as an Article 73 (e) Non-Self-Governing Territory. Thereafter, the UN removed North Borneo from the list of colonial territories under its decolonisation jurisdiction which omits North Borneo from the Committee’s list of territories, thereafter accepting that the process of decolonisation had been completed by a valid exercise of self-determination.

Conclusion

The modern international law does not recognise the survival of a right of sovereignty based solely on historic title, not in any event, after an exercise of self-determination conducted in accordance with the requisites of international law. In accordance with the law pertaining to decolonisation, its population has the right to exercise self-determination.

The Sipadan-Ligitan case illustrates the wisdom of the ICJ in upholding the voice of the people in determining the future of their nation through a legitimate process and any interference of claimant would tantamount to disrupting the continuous peaceful display of sovereignty. Sabahans have decided in 1963 to gain independence as a state within Malaysia and for five decades, Sabahans have identified themselves as Malaysians. Therefore, it is unquestionable that Sabah remains in Malaysia permanently and any act to undo its legitimate act would tantamount to disrespecting Malaysia’s sovereignty.

Rahmat bin Mohamad and Mohd Hazmi bin Mohd Rusli ‘Self-determination vs Historical Claims: A Case of Sovereignty over Sabah’ The Malaysian Insider (May 2013)

Read More : TheMalaysianInsider , 27 May 2013