Photo / caricature courtesy by The Philippine Daily Tribune

Effectivitès undertaken by the Malaysian government does not create a territorial title, because Malaysia has no title of sovereignty over Sabah.

COMMENTARY

By The Editorial Board (TEB) of Daily Tribune (Published July 29, 2020)

No less than the icon of government service, the late venerable Sen. Miriam Defensor Santiago, believed that the Philippines has an absolute right over Sabah if the issue is brought into international arbitration.

Also, she underlined that a resolution of the Sabah issue would benefit both disputants, the Philippines and Malaysia.

In a 2013 speech, she said that putting off the territorial question would breed security risks for both countries in Sabah.

“Sabah seems to be the lair of the al-Qaeda-linked regional terror group Jemaah Islamiyah. Hence, Sabah could be used by terrorists as the springboard of a pan-Islamic state,” she noted.

The application of international law ultimately favors the Philippines in Santiago’s view.

“As a student of international law, I humbly submit that the historical records indicate that sovereignty over Sabah was vested in the Sulu sultan. In turn, the sultan’s heirs ceded sovereignty over Sabah to the Philippines. Therefore, it is the Philippines which now possesses sovereignty over Sabah,” she explained.

Unlike the Philippine claim, Malaysia’s proof of ownership is based “only on two British figures, Overbeck and Dent, who entered into the so-called 1878 Deed. Since the Malaysian claim ultimately depends upon this Deed, then the claim is questionable.”

The deed was written in Arabic, and “it is a question whether the intent was to engage in a deed of lease, or in a deed of cession.”

Also under international law, British nationals could not assume state sovereignty; they had no legal status to accept a deed of cession of territory, according to Santiago.

It was on 11 February 2013 that followers of Sulu Sultan Jamalul Kiram III landed on Sabah shores in their bid to restore the territory to the Sultanate after the expiration of an 1878 lease agreement with a British company.

After the Malaysians quelled the incursion and many of the Sultanate’s followers were killed, the Kuala Lumpur government subsequently stopped the yearly payment of rent that amounted to something like P77,000 a year based on the ancient deal.

Santiago who was elected as a judge in the International Criminal Court, which is among her sterling achievements, cited provisions of international law that favors the Philippines’ claim.

“In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivitès. This is a French term which refers to acts undertaken in the exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory,” according to Santiago.

In effect, she said not every person can display state sovereignty.

“Only persons whose acts are attributable to a state can perform an act undertaken in the exercise of sovereignty on its behalf. The acts of private entities are in principle not attributable to a state.

Thus, they cannot create a title of sovereignty for a state. In the case of the Europeans Overbeck and Dent, the issue is whether those two persons were allowed to exercise elements of governmental authority.”

She added that under international law, the presence of a population in a territory is not in itself determinative for deciding which state is the holder of the territorial title of sovereignty.

“But in brief, in a territorial dispute, the legal value of effectivitès is to be assessed according to the existence or not of legal title,” she continued.

“Effectivitès undertaken by the Malaysian government do not create a territorial title, because Malaysia has no title of sovereignty over Sabah. Because the title of sovereignty over Sabah is held by the Philippines, our title has primacy over contradictory effectivitès of Malaysia. The effectivitès of Malaysia are unlawful and cannot in themselves create a title of sovereignty,” Santiago said.

She maintained that in analyzing a territorial dispute, state conduct should be “painstakingly considered.”

“Philippine state conduct serves to maintain our right of sovereignty over Sabah. Even if the Philippines has lost control of its territory, the Philippines continues to claim Sabah by issuing protests and by enacting legislation, or by taking relevant conducts regarding Sabah, by which Philippine manifests its intent to remain the sovereign,” the noted legal expert said.

The dispute should be settled during the time of strong political will in the leadership, as in now.