Historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium. – International Court of Justice
There are persuasive legal and historical arguments to support the Philippines’ claim to Sabah. However, wonderful as those arguments may be, we have no right to claim Sabah because the people of Sabah have spoken and they have no interest in becoming a part of the Philippines. They voted to join Malaysia through a referendum conducted in 1963.
Although the Philippine claim to Sabah has not been brought before the International Court of Justice (ICJ), the ICJ has ruled in the Application by the Philippines for Permission to Intervene in the sovereignty case between Indonesia and Malaysia over Pulau Ligitan and Pulau Sipadan that “historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot—except in the most extraordinary circumstances—prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.”
The Court also pointed out, “Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial title erga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a ‘people’ into this traditional legal scheme, notably the right of peoples to self-determination, fundamentally alters the significance of historic title to the determination of sovereign title.”
Sa madaling salita, walang ibig sabihin ang historic title mo kung ayaw ng mamamayan na magpailalim sa poder mo because in this post-colonial world “the principle of self-determination of peoples” rules. Self-determination na ang basehan ngayon. It trumps historic title every time.
The ICJ also upheld the 1963 Sabah referendum,
“15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize 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, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”
“16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self-determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self-determination. The Court cannot be a witting party to that.” (Read the entire decision here.)
President Aquino is right, the Sabah claim is a hopeless cause. And he is not the first president to see this. Unfortunately, there are still many intelligent Filipinos who believe we have a legitimate claim to Sabah, based on historic title. Consequently, no Philippine president will want to be seen as the one who “lost” Sabah even though we already lost it in the Sabah referendum held 50 years ago.
Sabah is for Sabahans. If they chose to belong to Malaysia then so be it, we have to respect their choice. Period.
As to the proprietary claim of the Sultan of Sulu over Sabah, please naman huwag na niya idamay ang buong bayan diyan. It’s a personal proprietary claim, it is not a matter of national interest.
Hopefully, President Aquino will set the record straight.
Buencamino is a fellow of Action for Economic Reforms.