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COURT JUDGMENT: 2002 ICJ decision on Sipadan strengthens the fact that the state has always been part of Malaysia
LAST month, several hundred armed followers of Jamalul Kiram intruded into Lahad Datu, Sabah, and refused to return to the Philippines despite being cornered by Malaysian security forces. Jamalul claimed sovereignty over Sabah by reiterating that the area was his ancestral territory.
Jamalul supported his contention by asserting that the rent paid by the Malaysian embassy is a recognition of his sovereignty over Sabah.
On March 2, Philippine President Aquino urged the armed intruders to surrender without conditions to prevent further loss of lives. The Sulu insurgents refused to do so, resulting in clashes with security forces.
Since the crime was committed in Malaysian territory, the Sulu aggressors should be punishable under the Malaysian law.
If these criminals are non-Malaysian, then they could be liable and punished under Malaysian penal laws. On the other hand, if they are Malaysian, they could be charged for waging war against the Yang DiPertuan Agong, which is a grave offence under Malaysian law.
Territorial acquisition and recognition under international law
There are a number of methods of territorial acquisition under international law, among others, through conquest, prescription and cession.
Conquest or annexation was recognised as a method of territorial acquisition in the past but has been deemed illegal under international law at least when the United Nations Charter came into force in 1945.
Therefore, the most relevant for Sabah is obviously through cession and prescription.
A state may acquire sovereignty over a certain territory if the sovereignty is transferred or ceded by the sovereign to another.
If the British version of the 1878 Treaty is adopted, it is, therefore, clear that the sovereignty over Sabah has been, since 1878, transferred by the sultanate of Sulu to the British, which later, under the concept of utti possideti juris, to Malaysia.
In addition, under international law, prescription refers to acquisition of sovereignty by way of actual exercise of sovereignty, maintained for a reasonable period of time that is effected without objection from any state.
Even if the British version is contested and the Sulu version of the 1878 Treaty is upheld, the sultanate may not be able to claim sovereignty over Sabah as Malaysia has, since 1963, exercised prescription and administered Sabah without any consistent objection from any members of the UN.
Malaysia's exercise of sovereignty over Sabah is different with that of Indonesia in relation to Timor Leste. Timor Leste was annexed by Indonesia in 1975.
Due to protests from the international community and the Timorese themselves, Timor Leste became an independent sovereign state in 2002.
Sabah was never annexed as it, through the Cobbold Commission, voluntarily joined the Federation of Malaysia.
Ever since 1963, Malaysia has installed a working government to administer Sabah, invested funds to develop its economy with the international community recognising Sabah as part of Malaysia.
This could be seen in the 2002 International Court of Justice decision, which awarded the islands of Sipadan and Ligitan located off Sabah, which were disputed by Malaysia and Indonesia, to the former. This decision has strengthened the fact that Sabah has always been part of Malaysia.
The claim of Sabah as ancestral territory of the Sultan of Sulu may also seem to be baseless.
In the Malaysia-Singapore dispute over Pulau Batu Putih/Pedra Branca, the ICJ initially recognised the sovereignty of Pulau Batu Putih/Pedra Branca was with the Johor sultanate.
Nevertheless, the ICJ awarded Pulau Batu Putih to Singapore when it was proven that the British government of Singapore has acquired it from the sultan of Johor.
This basically shows that as far as this matter is concerned, the claim of ancestral territory does not carry much weight under international law.
If the claim of ancestral territory holds strong position under international law, then Pulau Batu Putih/Pedra Branca should remain with the Johor sultanate (Malaysia) and not with Singapore.
The continuous display of control by Singapore government over Pedra Branca and Malaysia over Sipadan and Ligitan superseded historical claims over these territories.
It is true that historically, Sabah was part of the Sulu Sultanate. Nevertheless, the political scenario of Sabah and the Philippines has changed since the Spanish, the British and the Americans came to this part of the world with the aim of colonisation.
Sabah is now part of Malaysia and has been progressing well towards development and modernisation, consistent with Malaysia's vision to become a developed nation by the year 2020.
Indeed, the relative prosperity of Sabah has turned it into a gold-mine for most non-Malaysians residing in the state. If not for Sabah's fair economic achievement, the sultanate of Sulu would not put a claim on Sabah.
Regardless of the Sulu claim, the international community has acknowledged Sabah as part of Malaysia and it will remain as such. In this respect, the claim of Sabah by the sultan of Sulu could be seen as a reminiscence of a long-los' sovereignty.
Rahmat Mohamad is secretary-general of New Delhi-based Asian-African Legal Consultative Organisation, while Mohd Hazmi Mohd Rusli and Muhamad Azim Mazlan are lecturers with Universiti Sains Islam Malaysia.