What Malaysia should and should not do about Philippine claim to Sabah

From last December to March this year, notes verbale were filed by Malaysia and the Philippines at the United Nations over Malaysia’s extension of its continental shelf claim from Sabah’s coast facing the South China Sea. Malaysia’s filing was consistent with the UN Convention on the Law of the Sea (Unclos), yet it drew an unpleasant response from the Philippines, which continues to entertain an archaic and controversial claim to Sabah territory.

The Philippines’ note verbale concerned only Malaysia’s filing, asserting that the latter overlapped with the Philippines’ extended continental shelf (ECS) claim which it has yet to stake. If the Philippines feels disadvantaged because it is currently unable to file an ECS claim for itself for fear of antagonising China, that is a problem it has to resolve on its own. Nonetheless, the festering wound of its unmet claim to Sabah was reopened in July when a Twitter note from the US embassy in Manila mentioned “Sabah, Malaysia”.

The furious reaction from Philippine Foreign Secretary Teodoro Locsin Jr was to deny that Sabah was in Malaysia. The lack of realism in that statement sums up the whole Philippine narrative centred on its disputed and anachronistic claim to Sabah. Philippine pundits may oppose or reject Sabah’s inclusion in Malaysia since 1963, but denying the fact of Sabah being a part of Malaysia amounts to abandoning reality. It is of no help to the Philippines itself or to its relations with Malaysia.

That Sabah or North Borneo was once part of the Brunei empire is not disputed. But the Philippine claim to Sabah rests on the assertion that Brunei gave the territory to Sulu in return for assistance in the 1660-73 Brunei Civil War. However, the sources supporting this notion give the year of transfer as either 1658, two years before the Civil War broke out, or 1704, 31 years after it ended. The span of time covers the rule of different Brunei sultans.

Brunei has never accepted or acknowledged that North Borneo was given to Sulu. A narrative in Brunei states that although an offer of land may have been made in exchange for military support, that support never came so the deal was never concluded. No Sulu sultan or other authority has been able to furnish proof of ever receiving the territory from Brunei, or of having governed it since.

Britain annexed Sabah as a crown colony in 1946, after the chartered British North Borneo Company acquired it through a sale from the German magnate Gustav Overbeck, who had obtained the cession from the sultan of Brunei in December 1877. Since Sulu was making representations to the territory then, Overbeck also went through the motions of a cession with the sultan of Sulu some three weeks later. Two competing title deeds were obtained, signifying rival claims to ownership and sovereignty being given away.

Both title deeds were for a permanent cession, but only Sulu has tried to overturn the agreement. Sulu representatives have since tried to use the title deed granted to Overbeck as proof of Brunei having ceded the territory to Sulu. Even before the founding of the Republic of the Philippines, successive Spanish and US colonial administrations had already rendered the Sulu sultanate defunct. Any credence in the Philippine claim today is highly contested and purely historical in nature, which is rejected in international law.

The Manila Accord of July 31, 1963 facilitated the formation of Malaysia with Sabah without hindrance from the Philippines, while granting Manila the option of continuing to entertain its claim. However, conditions were set by both the Philippines and the descendants of the defunct Sulu sultanate. Manila wanted a UN-approved plebiscite of Sabah residents endorsing the creation of Malaysia, and the Sulu partisans wanted the continuation of the RM5,000 annual cession payment (later increased to RM5,300) from Malaysia.

Malaysia met both conditions. However, after the February 2013 attacks on Sabah by armed militants from Sulu which violated their part of the agreement, Malaysia discontinued the payments. Philippine partisans have also described the annual cession payments as “rent” to support their claim of ownership.

The persistent claims to Sabah, whether from Manila, Sulu or both, are disreputable and without foundation. They are a continuing irritant to the Philippines’ ties with Malaysia and risk a rupture in otherwise healthy relations. They cannot continue to be a weighty albatross because no sovereign nation can accept such blatant and baseless claims on its territory. As with his immediate predecessor Benigno (“Noynoy”) Aquino, President Rodrigo Duterte had said he would study the Philippine claim before proceeding with it. That has been some years now and he, like Aquino before him, has decided not to pursue it.

Duterte has also weighed the issues with China and apparently decided that Philippine interests cover a wide expanse with Beijing, of which only a minor part concerns disputes in the South China Sea. He has consequently decided not to confront China over maritime territory but to work with China instead on various other issues to mutual benefit. Would Foreign Minister Locsin take the same tack with Malaysia over Sabah?

What Malaysia should not do is to even consider submitting the Philippine claim to international mediation or arbitration, or to mutual negotiation. Such groundless claims do not deserve being dignified by a sober Malaysian response as if the claims have or ever had any basis.

Malaysia has both de facto and de jure sovereignty in Sabah, a fact affirmed by multilateral institutions such as the United Nations and to which the international community attests. However, it is not enough to rest on such laurels because endless political spats over Sabah cannot possibly figure as “best practices”.

What Malaysia can and should do, or continue doing, is to ensure the supply of social services and humanitarian needs to the various communities in Sabah. Since Sabah is categorically a part of Malaysia, it is incumbent on Malaysia’s federal and state authorities to address such needs. Undocumented or illegal migrants may have to be deported and criminals penalised, but urgent needs must also be met urgently. In mid-September Duterte requested assistance from Malaysia for Filipinos in Sabah awaiting repatriation, a reasonable request which suggested that a Malaysian response would be appreciated.

It is time for Malaysia to put itself on the world map by doing good, constructive deeds in Sabah that no party can ignore or deny. Previous good work may not have been appreciated sufficiently or at all, so the obvious solution is to do more and do it more consistently.

The Philippine foreign ministry has even scandalised Malaysia’s conduct in Sabah by suggesting that there is some policy of discriminating against Philippine nationals there. Again, the best response to such an allegation is a concerted and visible effort by the authorities to do the needful.

The alternative is too unacceptable to contemplate: a deteriorating situation in image and substance for Sabah and Malaysia, with spiralling social problems and cumulative political costs. There should not even be lapses or pockets of unaddressed needs that can be exploited, distorted and misrepresented by partisans working against Malaysia’s interests. Government agencies at all levels must welcome the opportunity to work with the relevant civil society groups to ensure smooth and effective operations.

No party can conceivably argue against Malaysian sovereignty when that sovereignty underpins such universal good as meeting health, educational and nutritional needs of Sabah society. Philippine or Sulu partisans are unable to benefit Filipinos in Sabah because of their lack of resources and the absence of Philippine sovereignty there. They cannot reasonably begrudge Malaysia for such constructive work, which in time could blunt the appeal of an unreal Philippine claim to the territory.

There may still be elements in the Philippine foreign ministry seeking to project some sense of extraneous sovereignty in Sabah, if only to gain some brownie points in their own domestic politics. But they will then have to contend with Malaysia’s record of good work consistent with UN development goals. Any attempt to disrupt Malaysian governance in Sabah will thus also be seen as disrupting the good work for the people.

Bunn Nagara is a senior fellow at the Institute of Strategic and International Studies Malaysia and an honorary research fellow at the Perak Academy.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.