Note : The Sultanate of Sulu and Sabah under HM Sultan Fuad Abdullah Kiram I will handover the Sabah claim;
posted Dec 28, 2008 11:43 AM by Amando Boncales
International Court Denies Philippine Intervention, But Assures RP on Sabah
When Indonesia and Malaysia brought their territorial dispute over Sipadan and Ligatan islands to the International Court of Justice in 1988, Philippine officials were concerned about the implications of that dispute on the Philippine Sabah claim. It was suspected that the Philippine sovereignty to claim Sabah could be prejudiced by the arguments and submissions that would be made by Malaysia and Indonesia to the Court. Ligatan and Sipadan, made famous early last year with the notorious kidnappings of western tourist by the Abu Sayyaf, lie close to the Federal State of North Borneo. Philippine officials through Malaysia may take advantage of its legal dispute to consolidate its hold on Sabah. The fear was an argument from Malaysia which would establish its ownership of Sipadan and Ligatan on the basis of its sovereignty over Sabah.
To protect its interest in Sabah, the Philippine government in March this year, went to the International Court to seek permission to intervene in the on-going dispute between Indonesia and Malaysia. The Philippine legal team, headed by DFA Undersecretary, Merlin M. Magallona, argued the Philippine position last June in the International Court in The Hague.
In its decision dated 23 October 2001, the International Court found that the Philippine claim to Sabah will not be affected by the on-going case between Malaysia and Indonesia. The Court, therefore, declined to grant the Philippine request to intervene.
The International Court, in a landmark decision, explained that the Philippines has a heavy burden of proving the connection between its claim to Sabah, on the one hand, and the competing claims of Indonesia and Malaysia on Sipadan and Ligatan, on the other. And because the Philippines was not given copies of the Malaysian and Indonesian pleadings in the principal case, this burden of proof was even more difficult to discharge. The Court ruled that it was not convinced that the Philippine fear about a possible prejudice to its territorial interest in North Borneo was well established. Citing various international agreements that the Philippines had earlier identified to support its Sabah claim, the Court said that not one of these said agreements, including the famous 1878 lease of Sabah granted by the Sultan of Sulu, was relied upon by Malaysia and Indonesia in their respective arguments to support their competing territorial claims to Sipadan and Ligatan. In answering the major issue posed to the Court, the decision concluded that the Philippine claim to sovereignty in North Borneo “could not be affected by the Court’s reasoning or interpretation of treaties in the case concerning Pulau Ligatan and Pulau Sipadan”. In addition, the Court assured everyone concerned that it “remains cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines”.
Commenting on the decision, Undersecretary Magallona of the DFA, expressed his relief on the Court’s assurance that the Philippine Claim to Sabah will not be affected in any way by the decision of the Court in the main dispute between Malaysia and Indonesia. “Our main objective was to protect the integrity of our historic title to Sabah. We have achieved that objective even if we were not allowed to intervene. So inspite of appearances, the decision of the International Court is really good news for us.”
Undersecretary Magallona also noted that the heavy burden of proof imposed on the Philippines in order to allow it to intervene established a new rule of international law. “No one knew about the level of proof that was expected to be demonstrated by the Philippines. Not Indonesia. Not Malaysia. Not any country. We believe that establishing a “prima facie” case was sufficient. There was no previously established rule that could have given us guidance on the level of argument and proof needed. But then the Court invoked a new standard that it applied to us ex post facto. This is usually how international jurisprudence develops.”
Undersecretary Magallona also congratulated the Philippine legal team on a job well done. “Each one of the arguments made by the Philippines, and specifically opposed or objected to by Malaysia and Indonesia, was upheld by the Court in our favor. Our arguments on matters of procedure or substance were upheld because they were superior to the counter-arguments of Malaysia and Indonesia. On the critical issue of burden of proof, neither Malaysia nor Indonesia, nor even the Philippines, had any idea about that issue. There were no arguments or counter-arguments on that point.” He concluded, “While we lost the battle, our case has led to a much needed clarification of rules of intervention in the international court, and in that sense we have helped advance the cause of the international rule of law. As a bonus, we have put on record a territorial claim to North Borneo, and the Court has assured us that it will not do anything that will prejudice this historic claim.”