INTERNATIONCOURTOFJUSTICE
CASECONCERNING SOVEREIGNT YVER
PULAULIGITANAND PULAU SIPADAN
OBSERVATIONOFMALAYSIA
ON THEAPPLICATIOFORPERMISSION
TOINTERVENEBYTHEGOVERNMENT OF
THEREPUBLICOFTHE PHILIPPINES
2MAY2001 CASECONCERNINGSOVEREIGNTY
OVER PULAULIGITANAND PULAUSIPADAN
(INDONESIA/MALAYSIA)
WrittenObservationsof Malaysiaonthe
Applicationforpermissionto intervenebythe
Governmentof the RepublicofthePhiiippines
Introduction
1. These written observationsare made by Malaysia in response to the
Registrar'sletterof 14March 2001.
2. To summarize, Malaysia categorically rejects any attempt of the
Philippines to concern itself with aerritorial dispute involving two small
islands off theoast of Sabah (formerlyNorth Bomeo). The subject of the
dispute between Indonesiaand Malaysia is not Malaysia's sovereignty over
the State of Sabah (which sovereignty Indonesiaexplicitly accepts and
recognises). It is solely the question of title to two smallislands off
Semporna, Malaysia. Indonesia's claim is based on an interpretation of
Article TV of the Convention of 1891 between Great Britain and the
Netherlands. Spainhad previouslyexpresslyrecognised Britishtitle over the
territory which was the subject of the 1891 Convention,by Article IJJof the
Protocolof 1885.' ThePhilippinescan have no greater rightsthan Spainhad.
The interpretation of the 1891 Convention is thus a matter exclusively
between Indonesia and Malaysia, in which the Philippinescan have no legal
interest. Nor doesthePhilippineshave anylegalinterestin the subjectmatter
of the specific dispute submitted to theCourtby the SpecialAgreement. The
Application completelyfails to specifyhow the Philippines couldbe affected
by the outcome of the case. But even if the Philippinesdid have a tangential
andderivativeinterestin Malaysia'swinning thecase against Indonesia(in the
1
MalaysianMernorial,vol.2 Annex 15.
1sensethat this would confirmthe territorial extent of the State of Sabah,which
State the Philippines claims), such an interest is in no way specific enough to
justify the intervention. Malaysia has no need of the Philippines' intervention;
Indonesia can gain nothing from it. For the Court to grant the request could
appearto give substance to a baseless claim to a much larger territory which is
not in dispute between Malaysia and Indonesia. This is wholly outside the
purpose of article 62.
3. In these written observations, Malaysia first places in due perspective
the "claim" ofthe Philippines to Sabah, which is the subject of the Philippines
application (Section A). It then demonstrates that the Philippines has no
interest of a legal nature in the dispute submittedto the Court by Malaysia and
Indonesia (Section B). It showsthat there is no specifiedor legitimate object
to the Philippines' request(SectionC). It submitsthat, in any event,the Court
shouldrefuse that request in the exercise of the power of appreciation given it
by article62 (Section D). Therefollow some brief concluding remarks.
A. ThePhilippines'claimtoSabah
4. In order to deal with the Philippines' Application, it is not necessary
for the Court to pronounce upon its claim to Sabah. However, for the Court to
appreciate the issues at stake an outline of the claim may be helpful - the
more so since even a brief examination is sufficient to show that the claim is
manifestly ~ntenable.~
2 Inits application,thePhilippineshasnot botheredtoexplaintotheCourtthe
"legal basis" of its claim to Sabah. That claim was first introducedby
Philippines'representativesin the GeneraAssemblyin 1962. See General
Assembly Officia1Records, 1177" mtg., 27 November1962,pp. 874-877
(attachedas Annex 1 to these Observations); ibid.4thCommittee,1420"
mtg., 12December1962,pp.621-622 (attached as Annex2). Theclaimwas
subsequentlypublished as Philippine Claim to North Bomeo, Volume I,
Manila,BureauofPrinting, 1963,159pages.Copiesofthispublicationhave
beenlodged withtheCourt.5. The Malaysian State of Sabah has a population of 2.6 million and a
land area of 73,610 square km. This represents 11% of the population of
Malaysia and about 22% of its total area. As a component State of the
federation, Sabah has its own legislature, government and public
administration. Elections to the State legislature are held every 4-5 years.
Altogether 9 elections have been held since 1963. The latest was in March
1999.
6. What is now the State of Sabah has been under the effectivecontrol of
Malaysia and its predecessorsin title sincethe late-nineteenthcentury. During
this period, it has never been under the control of the Philippines or its
predecessors in title. Sabah includes 202 islands, only two of which (Sipadan
and Ligitan) are the subjectof the present dispute with Indonesia, as specified
in the Special Agreementfor Submissionto the International Court of Justice
of the Dispute between Indonesia and Malaysia concerningSovereignty over
Pulau Ligitan andPulau Sipadandated 31May 1997.
7. Unlike Indonesia's claim in the present case, the Philippines' claim
extends to the whole of the territory of Sabah. It is presented by the
Philippines irrespectiveof the wishes of the people of Sabah. It is not a claim
to two small islands.
8. The Philippines' claim to Sabah was first raised in 1962. It was never
presented in any formto the British North Bomeo Company. Nor had itbeen
previously presented to Britain. From 1946, Great Britain reportedon North
Borneo to the Committeeestablished under article 73 (e) of the Charter of the
United Nations. During this period the Philippines, as a leader of the
decolonizationmovementand a regular member ofthe Committee, never once
raised any claim to the territ~r~.~ On the contrary it expressly recognised
3
This is despite the fact that a number of claims were made, and annually
recorded, by various States to various tenitories: se.g. United Nations
Yearbook, 1948-49,p. 730and in each successiveyear until 1961.British authorityover NorthBorneoin a numberof treatie~.~It wasonly after
the people of North Borneo agreedin 1961 to considerjoining Malaysia that
the Philippines' claim was announced. The claim was and is based on an
alleged "cession" of sovereignty overNorth Borneo in 1962. The "cession"
was signed as a private law documentby a group of persons claiming to be
privatelaw heirs ofthe last Sultanof Sulu, SultanJarnalAl Alarn,whodied in
1936. As aninternational legal actit was and is worthless.
9. In fact and in law,the Philippines'claim to Sabahis totally lacking in
foundation, interalia forthe followingreasons.
(a) As an international entity, the Sultanate of Sulu disappeared in
September 1878, when Spain at last succeeded in conquering the
(b) Great Britain recognised Spanish sovereignty over the Sulu
Archipelagoin 1885. At the sarnetime, Spainexpresslyrenounced.. .
"as faras regardsthe British Government,al1claims of
sovereignty over the territories of the continent of
Bomeo, which belong, or which have belongedin the
past to the Sultan of Sulu (Jolo), and which comprise
the neighbouring islands of Balambangan, Banguey,
and Malawali, as well as al1those comprised within a
zone of three maritime leagues from the Coast, and
which form part of the territories administeredby the
Companystyledthe 'BritishNorthBorneo~om~an~'."~
4 See e.g. Philippines-united Kingdom, Agreement for Air Services between
and beyond their Respective Territones, Manila, 7 January 1948: United
Nations Treaty Series, ymJ-JJ8 p. 63; Philippines-United Kingdom,
Agreementfor Air Servicesbetweenand beyondtheir RespectiveTemtories,
Manila, 31 January 1955: UnitedNations Treaty Series\vol. 2u. 51;
Philippines-United Kingdom (on behalf of North Bomeo), Agreement
conceming migration of Filipino labor for employment in British North
Bomeo, Manila, 29 August 1955: UnitedNations Treaty Seriestol. 229p.
241.
5 Malaysian Memorial,vol. 2 Annex 12. The Sultan subsequentlyconfirmed
his subjection to the United States in an agreement of 20 August 1899:
Malaysian Memorial,vol. 2 Annex20.
6
Malaysian Memorial,vol.2 Annex 15. Underthe law in forceat the time,this was a perfectly lawful andvalid
renunciation. It extinguishedany purporteddaim of sovereigntyover
British NorthBomeo by Spain orby Sulu. Any attemptto revive that
claimnow is whollyprecluded.
The validityof this transactionwasexpresslyrecognisedby the United
(c)
States, in its capacity as sovereign over the Philippines and as
successorto Spain. Indeedit did sotwice,in theExchangeof Notesof
1907'andthen in the 1930Boundaryconvention.*
(d) After 1878,neitherthe Sultanof Sulunor his heirs had any capacityto
hold or cede sovereigntyor sovereign rights. The British Govemment
expressly recognised this in the negotiations leading to the 1907
Exchange of ~otes.~ In fact the Sultanate as an entity within the
Philippineswasabolishedon the deathof the lastSultanin 1936."
10. The Philippines'claim is to the whole territoryof the State of Sabah.
Evidently,this claim cannotbe reconciledwith the treatiesof 1885, 1907and
1930. It is also completely inconsistent with the principle of self-
determination. BritishNorthBorneo was a non-self-governingterritoryunder
Chapter XI of the United Nations Charter. In 1963, the people of North
Borneo exercised their rightof self-determination,as was affirmed by the
Secretary-Generalof the United Nations. Pursuant to an agreementbetween
the Federation of Malaya, Indonesia and the ~hilippines," and with the
consent of the United Kingdom, the Secretary-General conducted a
consultationin North Borneoand Sarawakin August-September1963. Based
on the Reportof his Mission, the Secretary-Generalconcludedasfollows:
7
8 Malaysian Mernorial,vol.2 Annexes 23-24.
9 Malaysian Mernorial,vol.2 Annex 29.
SeeMalaysianMernorial,vol. 1,para.5.35; Maiaysian Reply, para2.4,third
dot point.
'O SeeMalaysianMernorial,,vol. 1,para.5.23.
II Manila Accord, 31 July1963,UnitedNationsTreazySeries, vol.550 p. 343;
Joint Statement, Manila, 5 August 1963, ibid.,p. 356. The Secretary-
General'smandate wasspecifiedin para. 4of theJoint Staternent. "The Secretary-General referredto the fundamentalagreement
of the threeparticipating Govemmentsandthe statementby the
Republic of Indonesiaand the Republicof the Philippines that
they would welcome the formation of the Federation of
Malaysia provided that the support of the people of the
territories was ascertained by him, and that, in his opinion,
complete compliance with the principle of self-determination
within the requirements of General Assembly resolution
1541(XV), Principle IX of the Annex,had been ensured. He
had reached the conclusion, based on the findings of the
Mission that on both of these counts therewas no doubt about
the wishes of a sizeable majority of the people of those
territories tojoin in theFederationof~ala~sia."'~
The textof the Secretary-General'sReportis attachedas Annex3.
11. Even after the choice of the people of the territory was confirmed by
the Secretary-Generalin 1963,the Philippines continuedsporadicallyto raise
its claim to Sabah. It has however produced no arguable basis of claim.
Discussions with Malaysia have focussed exclusivelyon ways in which the
Philippines might withdraw its claim without offending its own domestic
public opinion. It was in this sense that the Malaysian Prime Minister
describedthe claim as a "doméstic problem" for the Philippines. There have
been no negotiations between Malaysia and the Philippines even on that
lirnitedsubject since 1987. The Philippinesrefersto "diplomaticnegotiations,
official international correspondence,and peaceful discussions that have not
been concluded" (Philippines' Application,para. 4 (b)). There are no such
negotiations pending, no unanswered correspondence and no continuing
discussionsof any kindonthe claim.
12. It should be stressed that the Philippines hasnever made a claim to
parts of Sabah: its claimis to theterritoryof the Stateas a whole. Its claim to
l2
Report of the Secretary-General,14 September 1963, as set out in United
Nations Yearbook, 1963, p. 43. See also Annual Report of the Secretary-
General on the Work of the Organization, 16 June 1963-15 June 1964,
General AssernblyOfleial Records, 19" session, Supp. No. 1 (A/5801), pp.
26-28.Sabah derives from the Sulu grant of 1878. In its view, that grant was only a
ternporary lease,I3 and a right of reversion has survived (a) the extinction of
the Sultanate as an international person; (b) the express recognition of British
rights over North Bomeo by Spain in 1885; (c) the express recognition of
British sovereignty by the United States in 1930;(d) the complete suppression
of the Sultanate by the United States in 1936;(e) the subsequent recognition of
British rights to North Borneo by the Philippinesafter it became independent.
13. Even if (quod non) these obstacles could be overcome, the two islands
which are the subject of the present dispute were not covered by the grant of
1878. Someone claiming a right of reversion to territory coveredby that grant
would not be entitled to the two islands.I4 Even in its own terms, the
Philippines' claim to Sabah gives it no right to the islands.
B. The Republic of the Philippineshasnointerestofa legalnature
in the casebeforethe Court
14. Article 62 requires a State which seeks to intervene to establish "an
interest of a legal nature which may be affected by the decision in the case".
As the Court has made clear in previous cases.. .
"...In order to obtain permission to intervene under Article 62
of the Statute, a State has to show an interest of a legal nature
which may be affected by the Court's decision in the case or
that un intérêd t'ordre juridique est pour lui en cause - the
criterion stated in Article 62."15
15. The burden of proof of the existence of aninterest of a legal nature lies
with the Stateseeking to intervene. In the Land, Island and Maritime Frontier
l3
In fact the grant (Malaysian Memorial,vol. 2 Annex 9) is expressed to be
"for ever" and there is no right of reversion. See also Malaysian Mernorial,
vol.2 Annex 10.
14 Malaysia and Indonesia agree that the two islands were not covered by the
1878 grant. See Malaysian Memorial,vol. 1, p. 39; Indonesian Mernorial,
vol.1,p. 14.
15 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Applicationto Intervene,Judgment,ICJReports 1990,p. 114,para. 52.Dispute (ElSalvador/Honduras),Applicationto Intewene case, the Chamber
of the Court noted:
"..it is clear, first, that it is for a State seeking to intervene to
demonstrate convincingly what it asserts, and thus to bear the
burden of the proof; and, second, that is has only to show that
its interest 'may' be affected, not that it will or must be
affected. What needs to be shown by a State seeking
permission to intervene can only be judged in concret0and in
relation to ail the circumstances of a particular case. It is for the
State seeking to intervene to identify the interest of a legal
nature which it considers may be affectedby thedecision in the
case, and to show in what way that interest may be affected; it
is not for the Court itsel- or in the present case the Chamber -
to substitute itself for the State in that respect."'6
16. The Special Agreement of 31 May 1997 and the submissions of the
Parties in the present case define the scope of the dispute before the Court and
the decision called for. As the Court remarked in ContinentalShelf(Libyan
Arab JamahiriyaAWalta) A.pplicationfor PermissiontoIntervene:
"Normally, the scope of a decision of the Court is defined by
the claims or the submissionsof the parties before it: and in the
case of an intervention it is thus by reference to the definition
of its interest of a legal nature and the object indicated by the
State seeking to intervene that the Court shouldjudge whether
or not the intervention is admi~sible."'~
17. The admissibility of the intervention as regards the existence of a legal
interest thus depends on a comparison of onthe one hand, the scope of the
decision sought by the parties under the Special Agreement and their
submissions, and on the other hand, the interestalleged bythe third Party.
18. The Special Agreement between Indonesia and Malaysia of 31 May
1997, Article 2, specifies the "Subject of the Litigation" in the following
terms:
16
Ibid.,pp. 117-118,para.61.
l7 Continental Shelf (Libyan Arab Jamahiriya/Malta) Application for
Permissionto Intervene,ICJReports 1984,p. 19,para. 29. "The Court is requested to determine on the basis of the
treaties, agreements and any other evidence furnished by the
Parties, whether sovereignty over Pulau Ligitan and Pulau
Sipadan belongs to Malaysia or to the Republic of 1ndonesia."I8
19. The submissions of the Republic of Indonesia, concluding its
Memorial, state:
"On the basis of the considerationsset out in this Mernorial, the
Republic of Indonesia requests the Court to adjudge and
declare that:
(a) sovereignty over Pulau Ligitan belongs to the Republic of
Indonesia; and
(b) sovereignty over Pulau Sipadan belongs to the Republic of
~ndonesia."'~
20. The submissionsof Malaysia, concluding its Memorial, state:
"In the light of the considerations set out above, Malaysia
respectfully requests the Court to adjudge and declare that
sovereignty over Pulau Ligitan and Pulau Sipadan belongs to
~ala~sia."~~
21. Against this background it is necessary to consider what interest of a
legal nature is allegedby the Philippines.
22. The first point to note is that the Philippines Application is extremely
vague and indecisive in this respect. As the Chamber in the Land,Islandand
Maritime Frontier Dispute case (El Salvador/iHonduras),Application to
Intewene stressed, "there needs finally to be clear identification of any legal
interests that may be affe~ted."~'But the Philippines is anythingbut clear. In
paragraph 2 (b) of its Application it says that it wishes to state its "view as to
how the determination of sovereignty over Pulau Ligitan and Pulau Sipadan
18 MalaysianMemorial,vol. 1,p.1.
19 IndonesianMemonal, vol. 1,p. 187.
20 MalaysianMemonal, vol. 1,p. 1 14.
21 1C.J. Reports1990,p. 118, para. 62.may or may not affect" its legal rights and interests (emphasis added). In
paragraph 4 (a), it says that..
"The interest of the Republic of the Philippines is solely and
exclusively addressed to the treaties, agreements and other
evidence furnished by the Parties and appreciatedby the Court
which have a direct or indirect bearing on the matter of the
legal status of North Borneo." (emphasisadded)
This is wholly lacking in precision or ~~ecificit~.~~
23. In any event, the legal status of Sabah as such does not have any
relation to the question of sovereignty over Sipadan and Ligitan. As noted
already, the Philippines7 claim rests on the grant by the Sultan of Sulu in
January 1878 to Baron van Overbeck and Mr. Alfred Dent. The grant
concerned territory on the mainland of Borneo, "together with al1the islands
included therein within nine miles of the ~oast".~~ Ligitan and Sipadan lie
more than nine miles from the Coastand they were not included in the grant.
Malaysia's title to them is completely independent of the grant of 1878 (even
if that grant was capable of bearing the interpretation the Philippines puts on
it, which it is not).
24. The dispute submittedby Indonesia and Malaysia to the Court rests on
the interpretation of the Convention of 20 June 1891, concluded by Great
Britain and the Netherlands. Spain was not a party to the Convention. The
Convention is res interaliosacta as far as thePhilippinesis concerned.
25. It is significant that not one of the 33 Appendices, appended to the
"Philippine Claim to North Borneo, Volume I"published by the Philippines in
1963,is related to the issue presented by the parties in the Special Agreement.
Neither the 1891 Convention between Britain and the Netherlands, nor the
'' Subsequentlyit assertsthat the Court'sdecisionwill "inevitablyand most
assuredlyaffect the outstandingtemtorial claim of the Republicof the
Philippines toNorth Bomeo"b,utitdoesnotSayhow.
'"alaysian Memorial,vol. 2Annex 9.1900Treaty between the United States and Spain, nor the 1907 Exchange of
Notes, nor the 1930 Convention between Britain and the United States are
included in the lengthy list of appended documents allegedly supporting the
Philippines ~laim.~~
26. The interest of a legal nature the Republic of Philippines refers to in its
Application is much more general in scope. The Philippines declares:
"A decision by the Court, or that incidental part of a decision
by the Court, which lays down an appreciation of specific
treaties, agreements and other evidence bearing on the legal
status of North Bomeo will inevitably and most assuredly
affect the outstanding territorial claim of the Republic of the
Philippines to North Borneo, as well as the direct legal right
and interest of the Philippines to settle that claim by pacific
means."
27. In the Land, Island and Maritime Frontier Dispute case (El
Salvador/Honduras), Application to Intervene, the Chamber of the Court
granted Nicaragua a limited permission to intervene, but did not accept the
more general request:
"The Charnber does not however consider that an interest of a
third State in the general legal rules and principles likely to be
applied by the decision canjustify an intervention. Even when,
as in the case of Malta's Application for permission to
intervene in the case between Libya and Tunisia, the State
seeking to intervene 'doesnot base its requestfor permission to
intervene simply on an interest in the Court's pronouncements
in the case regarding the applicable general principles and rules
of international law', but 'bases its request on quite specific
elements' in the case (I.C.J. Reports 1981, p. 17,para. 30), the
interest invoked cannot be regarded as one which 'may be
affectedby the decision in the case' (I.C.J. Reports 1981, p. 19,
para. 33). The consideration urged in paragraph 2 (d) of the
Application is thus insufficient to show the existence of an
interest of a legal nature."25
24 Philippine Claimto North Borneo,Manila,Bureau of Printing, 1963, olume
1,pp.41-43.
25
I.C.J. Reports 1990,p.124,para. 76.See also p.126, para.82, p. 128,para.
84.28. Likewise, in the present case, the Philippines have not shown that the
alleged interest, their claim to North Borneo, "may be affected by the decision
in the case".
29. The Philippines alleges an even vaguer legal interest as to "an
appreciation of specific treaties, agreements and other evidencebearing on the
legal status of North Borneo". Again this is wholly unparticularised,and any
interest the Philippines may have is adequately protected by the terms of
Article 59of the Statute.
30. The tmth of the matter is that the Philippines is trying, by way of an
article 62 intervention, to put before the Court a completely different dispute,
which raises against Malaysia the issue of sovereignty over the whole of
Sabah and its people. This is unacceptable. In particular, it ignores the basic
condition of consent (see Application, para. 7, where the Philippines asserts
that consent is irrelevant). As the Report of the Advisory Committee of Jurists
stated in 1920:
"The Court is to decide whether the interest is legitimate and
consequently whether the intervention is admissible. To refuse
al1 right of intervention, might have unfortunate results. The
essential point is to limit it to cases in which an interest of legal
nature can be shown, so that political intervention will be
excluded, and to give the Court the right of de~ision."~~
31. This very same reason led the Court to refuse Italy permission to
intervene in the Continental Shelf case (LibyanArab JarnahiriyaAValta). In
itsjudgrnent on the Applicationfor Permission to Intenene, the Court said:
"It has been emphasized above that the Italian Application to
intervene tends inevitably to produce a situation in which the
Court would be seised of a dispute between Italy on one hand
and Libya and Malta on the other, or each of them separately,
without the consent of the latter States: Italy would thus
become a party to one or several disputes which are not before
26
Quoted by S. Rosenne, TheLaw and Practice of the International Court,
1920-1996 (1997)vol. III, p. 1484. the Court at present. In this way the character of the case would
be tran~formed."~~
32. Again in the Land, Island and Maritime Frontier Dispute case (El
Salvador/Honduras),ApplicationtoIntewene, the Court remarked:
"Intervention under Article 62 of the Statute is for the purpose
of protecting a State7s'interest of a legal nature' thatrnight be
affected by a decision in an existing case already established
between other States, namely the Parties to the case. It is not
intended to enable a third State to tack on a new case, to
become a new part, and so to have its own claims adjudicated
by the Court ... Intervention can not have been intended to be
employed as a substitutefor contentious proceedings."28
33. Thus the Philippines' request fails to demonstratea legal interest in the
subject matter of the particular dispute between Malaysia and Indonesia and is
inadmissible in limine.
C. The Philippinesrequesthas nopermissibleobject
34. In considering a request to intervene under article 62 of the Statute, it
is essential to identify the object of the Request. The Philippines clearly
understands this, since one of its sections is headed "The Object of the
Intervention Requested. Yet the Philippines fails completely to state any
permissible object.
35. In the section in question, the Philippines identifies threejects of its
request (para. 5).
(a) "To presewe and safeguard the historicaland legal rights ...
over the territoryofNorth Borneo. ."
36. The first and evidently primary "object" of the Philippines is to
advance and assist its claim to Sabah (para. 5 (a)). Despite its protestations
27
28 IC.J.Reports 1984, p.25, para.41.
IC.J R.eports1990, pp.133-4,paras. 97,99.that "it does not intend to changethe subject matter, the nature or the scope of
the current proceedings between Indonesia and Malaysia", that is preciselythe
effect its intervention seeksto achieve.
37. Indonesia does not dispute Malaysia's sovereignty over Sabah. It
accepts Malaysia's sovereignty under the 1891 Convention and subsequent
instruments; the 1891 Convention is the basis of its claim to the two islands.
Thus the question sought to be raised by the Philippines (the legitimacy of a
claim to Sabah) is precisely not an issue in the case between Indonesia and
Malaysia. For Indonesia or Malaysia to respond to any substantive statement
that might be made by the Philippines would lead them both into questions
which have nothing to do with the present case and which would be a pure
distractionfrom the legal issues which the Court is called on to decide.
38. It may also be noted that the Philippines is one of many States which
recognises that the two islands are part of Sabah. In connection with the
recent hostage crisis arising from the seizure of Malaysians and others from
Sipadan, the Philippines repeatedly characterised the abduction as having
occurred "in Malaysia", "from an island resort in Malaysia" and "from a
Sipadan diving resort in Malaysia". Illustrative statements are attached to
these Observations as Annex4.
(b) "To informtheHonourableCourt .."
39. Secondly, the Philippines states as an object of its intervention "to
inform the Honourable Court of the nature and extent of the historical and
legal rights of the Republic of the Philippines which may be affected by the
Court's decision" (para.5 (b)).
40. The Court needs no such information other than the following. The
Philippines in 1962made a spurious and legally unsupportable claim to Sabah
as a whole. That claim has nothing to do with the particular islands in dispute.Indeed, since the Philippines' claim is based on the 1878 Sulu grant, it self-
evidently has no application to the islands, which lie beyond the scope of that
grant.
41. Information about the Philippines' claim will do nothing to assist the
Court in resolving the dispute between the parties to the Special Agreement,
Malaysia and Indonesia. The case has now been fully pleaded, over three
rounds of written pleadings with some 684 annexes and 136 maps deposited
by the two parties. As a result of the extensive research done by the parties,
there is not the slightest indication that any information about the alleged
"historical and legal rights" of the Philippines has any bearing on this specific
dispute. The Court is now fully informed about the dispute and can proceed to
decide it, as between the parties, without any reference to the Philippines7
claim.
(c) "Comprehensive conjlictresolution "
42. The third object cited by the Philippines is "to appreciate more fully
the indispensable role of the Honourable Court in comprehensive conflict
resolution and not merely the resolution of legal disputes". This is a purely
abstract and general matter, on whichthe Court needs no instruction from the
Philippines or anyone else. It is a gratuitous and impermissibleobject for an
intervention.
43. Malaysia and Indonesia submitted to the Court a precise legal dispute
over two islands, which dispute had arisen between them without any
involvement whatever on the part of the Philippines. The resolution of that
specific dispute will not be assisted in the slightest by the Philippines'
intervention. Nor does any question of "comprehensive conflict resolution"
arise. The Court is called on to resolve a specific claim made by Indonesia,
not to range around a region comprehensivelyresolving its many disputes.44. In any event there can be noresolution of a dispute in respect of a State
which does not seek to become a party to a case,*'and could not do so. In this
regard it may be noted that the Philippines specifically exempts from the
Court's jurisdiction under Article 36 (2) of the Statute al1disputesconceming
territory of or claimed by the Its concern for "comprehensive
conflict resolution" stands in starkcontrast with its own legal actions.
45. It may also be noted that the Philippines could have brought legal
proceedings against Great Britain at any time from 1946until 1962,before the
act of self-determination which resulted in the federation of Malaysia. It
failed to do so then. It should not be allowed at this late hour to advance its
claim through the side door of article62.
D. Inany event theCourtoughtto rejectthe request
46. The Court in dealing with requests for intervention under article 62 of
the Statute has a power of appreciation. This is clear from the use of the word
"may" in article 62 (l), from the terms of article 62 (2), and from the contrast
with the word "right" in article 63. It is true that the Court does not have "any
general discretion to accept or reject a request for permission to intervenefor
reasons simply of policy".3' But an application to intervene has to be duly
justified in the circumstances, andit is for the Court to appreciate whether this
is the case.32
29
'O See PhilippinesApplication,para. 6.
Philippines Optional Clause Declaration of 23 December 1971, proviso (e)
(ii): United Nations Treaty Series, vol. 808 p. 3. The Philippines'
Declarationis attachedasAnnex5.
31 TunisidLibya (MalteseRequestfor Intervention),I.C.J. Reports 1981, p. 3 at
p. 12, para. 17; repeated in LibyaMalta (Italian Request for Intervention),
I.C.J. Reports 1984,p. 3 atpp. 8-9,para. 12.
" Thus S. Rosenne speaks of "the complete absenceof anythingautomatic" in
intervention, whetherunderarticle 62 or 63:Intervention inthe International
Courtof Justice,Nijhoff,Dordrecht, 1993,p. 185.47. It is respectfully submitted that, even if the Philippines' request were
held to be admissible and to state an object which could be protected by
intervention, it should be rejected. This is so, inter alia, for the following
reasons:
(a) The Philippines can derive no possible benefit from Indonesia's
winning the case. If it has a legal interest, it must be to support
Malaysia's claim. Yet its intervention is obviouslyhostile to Malaysia.
(b) Malaysia categorically rejects the intervention. A third State should
not be permitted to intervene, when its only legal interest can be to
supportthe legal position of a party which rejects its intervention.
(c) To accept the interventionwill be seen as lending credibility to a much
broader (and indefensible)claimto the Stateof Sabah.
That broader claim is completely unaffected by the case between
(d)
Malaysia and Indonesia, or by the legal issues as they have been
defined in the pleadings.
(e) That broader claim, based on the 1878grant, on the face of it does not
extend to the two islandsin dispute in the presentproceedings.
(f) If the Philippines wishes to infonn the Court, the mere fact of its
Application sufficiently does so.
Concludingremarksandsubrnissions
48. In effect what the Philippines seeks from the Court is recognition that
"the legal status of North Bomeo [sic]is a matter that the Govemment of the
Republic of the Philippines considers as its legitimate concem". It is not the
function of intervention to allow third States, without any legal risk to
themselves, to pursue separate (and untenable) territorial claims. For thesereasons it is the case, as it was in El Salvador/Honduras, that the Philippines'
request is "too general" tojustify inter~ention.~~
49. The present case is the first Asian territorial dispute brought to the
Court for 40 years. It is the first disputeever brought to the Court by a Special
Agreement between two Asian States. It is respectfully submitted that the
Parties to the Special Agreement should be allowed to deal with their own
particular dispute without the gratuitous intervention of a third State, seeking
to advance its own unfounded claims to a much wider territory.
50. In short, not merely has the Philippines no right to intervene,it has no
claim to make. Malaysia urges the Court to reject the request.
Datuk Abdul Kadir Mohamad
Agent of Malaysia
Kuala Lumpur
2 May 200 1
'"CJ Reports 1990,p. 125,para.37.
18 LISTOF ANNEXES
AnnexNo.
1. General Assembly OfJicialRecords, 1177'~mtg., 27 November
1962,pp. 874-877
2. General Assembly Oflcial Records, 4" Committee, 1420"
mtg., 12December1962,pp.621-622
3. United NationsMalaysia Mission Report, "Final Conclusions
ofthe Secretary-General",14September1963
4. Recent Philippines statementspertainingto Sipadan
5. PhilippinesOptionalClause Declaration,23December 1971 ANNEX 1
GeneralAssembOfJie iecords,1177"mtg.,27 Novernber1962 -
itÇesSiori - Pierury Meetings
who havegrown 8ccuetomeâ to baalrgtheirprosperity 125. Two powea forces have made thisreoofutioo
larmly on the eJq.?loitation of other peoples are possible. The first is rise of nationrlism which,
CoGumed by btrëd of the pcop~es of the -soci~list pemading ail ronLs O Lee, supplied the motive
States, which have given an exunple of bowtoeject power for the militant nertion of the rightb self-
foreign plunderets fmm one's home and how to determination and 0th basic hum^ rights. Th
mange one's own wealth and build one's own life. second is the gmwh modern communications
120. Certain internattom circles interestedin fan- which speeded up .thef 8pre.d âissemination of
the libertarian principles embodial in the Charter
nurg hatred of the Soviet; Union and in attempting of the United Nations.
to undermine its prestige often try b shiftthis tbnk-
less task to others orho are prepared to oblige them 126.Tiae United Nations itseif ha6 played a vital
1 regret t~ Bay that amoag those who oba pm role' in this remlution. It hw se- as a cotrlyst
obliging are some Caoadian politicims witb amark- ln the process of dccolonization, chmnelling inde-
ediy antiSo~et bent. There ia no ne& togo inb tâe pendence movementa .long peaceful lines Mdensuring
dekails of the Canadian repreeentrtive'e unsaow y thatthe newly independent nations should irnrneâiarciy
insinuatioas about the Soviet peoples, including the find their rietfilplace in a communlly of free Staks
Ukrainians. We should merely like to say that his professing allegi~nce to the nüe of Iaw. The work
was a pitiful attempt at eubstfhiting for the genuine of the Special Committee of Serenteai refiscts the
problem of the peoples' liberation fmrn colonidism, profourid coocern oftta Uenited Nations for thespsdy
hich cdls for. -immediate solution,Lpmblemoa fa- liberationof the rernaining colonial territories. The
bricated by the colonialirts, who have lort their pmgrese reportcd by that Committee is encourrging.
self-possession and their heads and are fighting a
bopeless rearguard action against the national libe-, 127. We have reason to feel patified by this devel-
ratlon movement. opment, but the intensity of the debatee on the issue
of colonialism suggeats tbat our work ie far fmm
121. It is iateresting b note that hts stalement, done. For caionialism is a puasitic infection which
ln which elander alternatecl wlth hypocritical elghs, does mt respond uniformly to a given treatment.
the Canadian representative also tricdLo play on the It follows the classic phases of apparent cure and
pride of the Soviet peoples, upoo wbom he showered sudden reversai, and its outstanding characteristic
h~gh-sounding epithets in an attempt to moke tbe is the tenacity witb Pvhich it clings b itscbosen
~mincerity and tendentioueness of hia remuks more victims. Thus in Our owa the, eoen as we strtve
palatable. He calleû the Ukrfnîrra people6 *freedorn- to horten the liquidation of old-style coioniaiicm,
lovinga, appuently not rerlizing that fmm the lips we have seen the emergence of eubüer forma of
of a cham~ion of colonialism men well-deeerved subjectlon which are as dangernus in thtir implication
recognition 'of a people's qudities may ewndlike rn as they are clever in dieguislng their tme churcter.
insult. Let the Canadian delegation make no mietake lt 1san essential part of Our task to be on Our guard
about it: Our peoples is aware of the true motives against ail manifestations of this newer form of
which irnpel Canadian strtcsmen. wben addre6sing colonlallsm, toexpose them wherever they may arlse.
international or domestic audiences, to echo thetunes and to oppose their perpetuation with the sarneenergy
of 'mperialist renction whenever refereace iamide
to the Uriuainians and the othcr Sodet psoples. The and determination that we have devoted to the liquC
ükrainian people is truiy freedom-looing, and that dation of the older forms of coloniaiism.
1s precisely why it wu1 wt permit the imperinliet8 128. Let us never forget that colonidiem in MY
ad their yes-men to interfere in the interml Ltfatrs form is never justified. For ail for- of coloniaillirn
ofOur close-Mt friternd funiiy of socidLtpcoples. assume. as a firot princlple,the evil doctrine thrt
whlch have attained îndependencei trtedom rnd powcr one group of people ie superior to cher. fn LQ
and are coafidently building theFr bright oommudit gmesest form, colonidlern Molab8 thefundrmentd
humui righta of the subject psople, diebrta rn&
future. perverb tbeir peraondity, and ruthlesrly exploib
122. The threat b world pelce rnd aecurity will thelr national patrimov.
pereist untii al1 the peoplea of tâe worlare enaured
equallty and lndependence rnd util the lut link in 129. My county 'a epecid concern wlth tbe lerue
tbe colonial chah hse been imsbed. The right of of colonidtsm ariaes fmm the fret Lhst for our
eoery people toput an end ta foreign oppression is 400 years we Filipinoa wcre a subject peopie. We
sacred and inaiienable. We ue certain that that right were r colony of Spain for more tban 300 yeam
w~LI Inevitably triumph throughout tbe world. were under the United States of Amerka for ne&
hdf of i centuy. To a greater or leas degrce, 9f
123. My delegatioo will support aoy proposais aimed therefore ehare with the peoples of tke former *
~t the attaLnment of the noble objective pmclaimed lonles the traumattc experience of ha- ken ficd
ln thc Declaration on the granting of independence against Our wiil by alien Powere.
to colonial countries and peoples-that of the im-
mediate and compleb elimination of colonialiem in 130. The Filipim people are among the oldest
di its forme andmanifestations, volutionaries in the world. During the dmoet four
Mr. Plimrd (Austialla), VictPresident, took tbe centuries of Spanish rule. we rose inrewlt
CWr. average of once every two years. The last of tbNr
persistent uprisings finally succeeded in 1898.
124. Mr. RAMOS (Philippines): The pmcess of de-
colonltatlon set in motion at the end of the Second 131. On 12 ~uAe of that year. the leader of-
World War constitutes one of the brightest chapters Philippine remlutionary forces pmclaimed the *
in the story of man'e perenniai quest for freedom. public of the Philippines-the first free democratle
It ha8 bmgbt about a remlution which in scope and State to emerge in colonial. Asta.Ln defence of
import ranks withother great political developments first Phiiippine Republic.' our peaple fougiit the~d@
wùlch have profoundly dfected the qudity of civili- States of America in.awu that llosted fomore .
7.ation and the course of hietury. thtee yeors and ended only when we had @tu 1177th meeting -
left with which resiatthe superloriîy in arms and 138. The dispute between the Philippines md the
numbers of the United States forces. United Kingdom regarding sovereignty over NO*
Borneo sterne rnainly fr0m the differeat iilCerpreta-
132. Thereaffer. Our people embarked upon a de-
terrnined and uncompromising campaign for imme- tions which the two countries have placed on ndeed
diate, absolute and complete independence. This that was signed on 22 JainrPry 1878 by Sulta namaï
campaign wa8 carried on peacefully throue consti- Al Alam, the head of the Suttanate of Sulu. Before
tutional means, thanla to the adoption bg the United this date, the Sultan of sulu was the undisputed
States of America of a policy based on the recogni- sovereign and ruler of Nortb Borneo. ?be deed is
in Arabic characters, and the text iein the Mirlayan
tion of the Filipino people's right toaelf-determina- language. The key ward iathe Malayansvorà .prdjake.
tion. However, it tookOur people more thanïU'Q wbich means "leasen and whfch in au view clearly
yeara of peaceful stnrggle for thnt policy to be indicates that the territory was leaeed. not sald or
embodied in legislafion setting a definite date for ceded 8s the United Klngdom Covernmeatemneouely
the recognition of Philippine independence. And after claims.
those thirty years. another decade passed before the
Republic of the Phiiippines wasfinaLiyre-eatablished, 139. Tbe manner of payment , whlch iermdeaiinually ,
bears out our conviction that that agreement was a
133. This hiatoric event took place on the fourth lease agreement. So doea the amount of rental:m&y,
of July. 1946, at the verybegiming of the process which was 5,060-later increased to 5.300-Malayan
of decalonization to which 1 have referred. The doilare per aanum, about 1,8W United States dollars
te-established Philippine Republic, acharter Member a year or 150 United States dollars a month, for a
of the UnitedNations. was the first of the former territory comprising 29,388 square mfles. appmxi-
colonies in Asia to function as a free and independent mately the size of ireland.
State. inthat sense. it may be said to have ushered
in the era of emancipation of colonial peoples which 140. When the original lessee. a private company
we are now seeking în consolidate and bring to called theBritish North Borneo Company, transferred
fulfilment. its righLs to the terrimry to the United Kingdom on
26 June 1946, it transferred leaeebld rights, not
134. After Uri6brief historical review of the inde- sovereign rights, for the simple reason that the
pendence movement in the Philippines, highlighting company could not transfer ri- that it did not
the position of my chvenunent on the question of itselfhave. And when, with understandable haste,
colonialism, 1 now wish to address myself toa part the United KingdomGovernment annexed the territory
of the report of the Special Cornmittee of Seventeen.
which is before us in document A/5238. 1 refer to of North Borneo 8s a Crown colony on 10 July 1946-
that part which affects Our sovereignty over North six days @er fhe ro-establishrnent of the Republic
Borneo in relation to a project to establish a new of the Philippines-the United Klngdom Government
federation called the Federation of Greater Malaysia. performed an act of questionable legality.
135. These two subjects-sovereignîy over North 141. Sevenyears before, a British court had handed
Borneo and Federation of Greater Malaysia-are of down an opinion, which reads:
particuiar interest to the Phiïippines because the "It is abundantly cl- that the euccessor in
establishment of this new Federation of Greater eovereignty of the Sultan of Wu are the Covemment
Malaysia would involve the transfer of sovereignty of the Philippine Islands...*.
over North Borneo. The Philippines bas put foward
a formal clalm of sovereignty over North Borneo. This quotation, which thrpws a revealing light on the
A dispute bas arisen between the Philippine8 and question of sovereignty over North Borna>. le fmm
the United Kingtiom over thia issue, a diapute whlch a declelon by Chlef Justlce Macaskie of the High
yet remains uneettled. Court of North Borem in a suit th& waa brought
by the heire of Sulhn JarnalutKiram, theheadof
136. The Vlce-Preeident rad SecretPry of Foreign the Sulu Sultanate fmm 1894 until hi8 death in 1936.
Affaira of the Phflippines, in a policy etatement Whüe we are mt prepared to accspt all thepro-
made before thL Aesemhly ln the morhing of 27 nouncementa made by JusticeMaCaalde. we are meùiag
September 1962,referred brieiïy tothe claim of the reference ta hia decieion for the purpose of brmging
Philippine Goverment to qe territory of Nortb out the reaaon which impelled the present Sultan of
aornen. He saidamong other things, and 1 quote: Sulu to cancel the lease over the territory a few
"Our claim has been put forward with sincere yeare later.
assurances that ihe issueshould be settied by 142. The suit before the Borneo courts waa in the
peaceful, rneans. and without prejudice to the exer- nature of an interpleader fnitiated for the purpose
cise of the right of selfdetermination by the in- of getting a judicial pmnouncement as to wiio were
habitants of North Borneo. preferably under United the heirs of the late Sultan Jarnalul Kiram entitled
Nations auspices." [1134th plenary meeting, para. to receive the rental pmvided for in the deedof
25.1 1878. In his decision Justice Macaskie made a dis-
137. Later in the same meeting, the representative tinction between what he called "the private heirsn
oi the United Kingdom said: of thedeceaeed Sultan, who were entitledto theanmial
payment of 5.300 Malayan dollars, and the *succes-
"... with regard to the claim to North Borneo. sors in sovereigniyn of theSultan. Justice Macaskie
1 must place it on record that the United Kingdom declared Princess Tarhata Kiram and eight others
has no doubt as to its sovereignty over the ter- the private he~rsof the Sultan and the Philippine
ritory" [=.. para. 1271. Government as the successors in sovereignty.
By these statements of representatives of the two 143. The United KiogdornGovernment was fuily aware
Covernments concerned, the issue of sovereignty of the opinion of Justice Macaskie that the successors
over North Borneo was clearly joined. in sovereignty of the Sultan of Sulu were the Cov- 876 Ceoeral. Assembly - Seventeenth Session - Pleuary Meetings
ernment of the Phiiïppine Islands It was likewise Malaysia pmwsals for North Borneo. Still another
aware of the fact that Princess Tarhata Kiram and part shtes: ..
eight other had been declared by the High Court of
North Borneo as the private heirs of the said Sultan. ."There had been no elections. ... Only recently
have plans been made for election to District
But when it annexed North Borneo on IO July 1946, Councils and Town ~oards.*g
and five days later assumed sovereignty over the
territory, the United Kingdom Covernrnent notified 148. In other words, since the year 1881,when the
neither the Phiiippine Government nor the Sultan's British North Borneo Company started adminietering
heirs of the annexation and the assumption of sov- North Bomeo for tùe Sultan of Sulu. and even as
erelgnty. A distinguished American. a great adwcate late as 1946, when the United Kingdom Government
,of the principle of self-determination. none other than annexed North Borneo as a Cnrwn colony the in-
the Honourable Francis Burton Harrison, w& has habitants of the territory have not been given the
made a legai study of the North Borneo case, h~ opportunîty to elect even local officiale.
caïled the annexation of North Borneo by the United
Kingdom Government an act of political aggression. 149. A parailel situation obtains in the field of
In 1957 Sultan Esmail Kiram issued a proclamation education. The figures given in the Cobbold report
cancelling the lease of 1878. A formal notice of the show that out of the total popuiation aged ten years
canceliation waç sent to the United Kingdom Gov- or mer there are only 72,000 literate; 227,000 are
illiterate.From the indigenous popdation of over
ernrnent in London, to the British North Borneo 300,000, only hvo persons have gone through college.
Company in Jesselton nnd tothe Secretary-General
of the United Nations in New York. 150. It 1s al60 noteworthy tbat the so-caîled "Cal-
144. Let us consider aaoUrer portion of the report endar of Constitutionai ~dwnce* [A/5238, annex Il
of the Special Committee which deals with thequestion records the fact that a decision in priuciple bas
already been arrived at by theGooemments concerned
of self-determination for the people of North Borneo. that the propoeed Federation of Greater Malaysia,
The Committee has circulated a number of petitions which will include North Borneo, wlll corne into being
concerning colonial territories. Amongthesepetitions on 31 August 1963, but makes no mention whatsoever
is ones dated 9 September 1962 from political parties of an important part of the decision, namely, the
in North Borneo, Sarawak and Brunei, requesting the accord reached by thoae Governments that within
United Nations *to intervene in the proposed transfer six months they wiil enter into a formal agreement
of sovereignty in Sarawak and Sahaha. North Borneo providing for the transfer of sovereigniy over North
is also known as Sabah-"on the gmund that such a Borneo ta the proposed Federation of Greater
transfer is a denial tothe people8 in these terribrles Malaysia. The six-month period presumably started
of their right to self-determination and of their right on the day the decision was mived at-about the
to cornpiete independencem. Alternatively, the petition
as& the United Nations ta organize and conduct a end of July or early August of this year.
plebiscite betore the transfer of sovereignty. 151. The schedule of steps leading to the incorpora-
tion of the territory into the proposed Federation
145. The petition reads in part as follows: of Greater ~a~aysia, the term.al-date of which is
.31August 1963, makes itvirtually certain that the
"13. The aseessment of the [Cobbold] Qommis- people of the territory will. after that date. have
sion was that about one third of the population forfeited their right ta express their ,real opinion
strongly favoured realization of Malaysia without
conditiom. one third favoured it with conditiorÿr on the all-important question of self-determination.
and eafeguards and the rest againet. This assess- 152. Before that happene we eaxnestly hope that the
ment was totaliy wrong and could not be supported Philippine clalm to North Borneo will have beeir
by facb and cannot be accepted by independent settled on the basis af legaliQ and justice. For under
impartial observers." that claim the right of the people 'ofNorth Borneo
to seif-deterrnjnation waild be asmued.
.46. The Cabbold reports iteelf maises thia ad-
niesion: 153. The territory of North-Borne oe vq, cloee
fo the Philippines. There are many lalands in the
*in aeseaeing the opinion of the people% df North Pùilippine Arcbipelago-the Twüe Islands and the'
.gorneo ... we have ody been able ta arrive at Mangeee Islande-whîch lie within a stone's throw
'm approlbmation. We do not wish ta maLe any of North Borneo. From the southermoet hlands of
guaranîee that lt may not change in one direction the Phliippine Archipelago. one can paddle to No*
or the other in the future. Maidng allwances for Borneo insmall wooden boats or canoes.
al1 the difficultiea and for out tnability to reach
every part of these lare territories. we have 154. Thus, from the point of view ofnational eecurity,
arrived' at a general consensus of osinion with the Philippines has a vital stake in the future of
reaeonable cdidence, ba~ed on individuai and North Borneo. The terrkbry is like a cork that
representative evidence presented before us." closes our great inland sea, the Sulu Sea, and 1s
therefore of great strategic importance for the
147. Another part of the Cobbold report containa Philippines.
the admission that becaqe of "Micient timen
the inhabitanta of the territory couid not make a 155. However, in putthg fonvard its vaiid claim to
"carefui sbdy" regardhg the implîcations of the sovereignIy over North Born-, the Philippines ha6no
desire or intention toignore the wishes of the people
of the terribry. North Borneo is not a Pacific atoll
inhabited by gooney birds, or an Antarctic lsland
'I h/aCl@/Pff.46. mimeographcdonly. inhabited by penguins. It is inhabited by nearly a
2 Repon of rbe Commission ofEnsulayinm'Nonh Bornco and
Sarawak.1962(London.Her Majesry'rSucionuy Office. Cornmaml
Pipr 1794.chap 3prr 143). 1177th meeting - 27November 1962 877
&lf-million people whose rigbt to seif-determination the Govemments concerned that we can in no way
muet beconsidered and respected. accept the London Agreement afkcting the territary
of North Borneo as a fait accompli tend* to set
156. It h for this very reason that Preaident aside the "hilippine claim of which those Govern-
Macapaga1 of the PWppines, on 27 July 1962, gave mats are fully aware. We have likewiae informed
the fo~owing soiemn assurance:
them tbat the claim of the Philippines to North
"The Philippines ia loyauy committed to the Borneo subsista, and will continue tombsist, until
principle of self-determination of peoples. There- the dispute is resolved by peaceful means in ac-
fore, Ff the necessity of ascertaining the wlshes cordance with the Principlee of the United Nationa
of the inhabitants of North Borneo regarding their Charter.
Mure should arise at any time. the Philippines
would support their deaire to exercise thle right, 164. My Government has viewed with compoeure
prefersbly In a pleblscite under the auplce8 af what appeare to be a studied inciifference ta our
the United Nations.' repeated requwts for bilateral talke. But we are
confident that the United Kingdom. which thePhilip-
157. This solernn assurance waa reiterated [1134Ui pines considers an ally in the cause of world peace,
meeting, Fa. 251 by the Vice-Preaident and Sec- wiiï not continue tn ignore our juatclaim. Simple
retary of Foreign Affalrs of the Phllippinea in Ms justice and the best interesta of the peoples concerned
pollcy statement before this Assembly, which 1have dictate thatour dispute with the United Kingdorn over
already referred to. North Borneo be settled before the creation of a
Federatlon of Greater Malaysia, in order to eneure
158. My Government. ha8 spared no effort to have the exercise of the right of the people of North
this dispute over North Borneo settled amicably Borneo to self-determination and, at the same time,
and speedily on a bilateral basis. to secure the peace, friendship and good wiii of the
159. inresponse to the growing pressure of public people8 in that part of the world.
opinion in the Philippines, the House of Represent- Mr. Muhammad Zaballa Khan (Pakisîan) resurned
atives of the Philippine Congress unanimously ap the Ckir.
proved, on 24 April 1962, a resolution urging the
President of the Philippines .to claim swereignty 165. The PRESDENT: 1 recognize the representative
over North Borneo. However, before the President of the United Kingdom tn exercise of his right of
could implement that resolutbn. the Government of reply.
the United Kingdom informed the Philippine Gov-
ernment that lt would oppose and resist any auch 166. Sir Patrick DEAN (United Kingdom): The rep-
cîaim, in an effort toforeatall the presentation of resentative of the Philippines, in the course of the
the claim even before its merits bad been exarnined. speech he bas just delivered, referred to a claim
by his Government to the territory of North Borneo.
160. On 22 June 1962, My Government took the He supported bis claim with a number of statementa,
firet step towards a negotiated solution of the North argumenta, and quotations .
9orneo problem. It informed the United Kingdorn of
ie Philippine claim to sovereignty mer the territory 167. My delegation will study theae argumente,
and requested of the United Kingdom that conversa- statementa, and quotations with the care which they
tions be held either in Manila or London to discuss no doubt deserve. Meanwhile, i would 8ay only this:
thls le an entirely new çiaim. Both the Pbiüpplne
al1the relevant points at issue. Constitution of 1946 and the 1961resolution of the
161. Thisrequest waa pointedly ignoreci. The Phi- Phtlippine Congres8 cm territorial waters, defined
Uppine Covsrnment found it necessary to send an the boundariea of the Philippines to the exclusion
aide-memoire reiterating ite request for biiateral
talks. It was not unUl 8 August 1962 tbat the Phi- af North Borneo. Moremer, there isatrongopposition
to the Philippine cldm from the population of North
lippine Government received an aide-mernotre from Borneo. Leaders of aii five poïiticaï organizations
the United Klngdom. That aide-memoire, hawever, in North Bornw sent an open letter b the Preatdent
was completely suent on the Philippine requeat for of the Philippines laet mooth h whtch they said:
bilnteral talks. On 12 September. shortly before the
present Ceneral Assembly session. anather note was 'We do not believe-an4 aur people do not believ-
aent to the British Government reiteratfng.for the tbat the Governent of the RepubUc of the PhLlip-
second time the Phiiippine request for biiateraltaW. pines has any claim over any land whatsoever
because of the former Suitan of Sulu, or in any
162. My Government is seriously concerned about other way. We believe that, no matter w&t anyone
the oomewhat cavalier treatment which our succes- may say about thia 80-called claim, not one of
sive requests over a five-rnoath period have received the peoples of North Borneo bas any wish to
:rom the United Kingdom. We are finding it increas- become part of the Republic of the Philippines,
ingly difficult not to draw the conclusion that the nor wouîd any of them consent tothis."
United Kingdom is deliberately ignoring Our claim
:nan apparent effort topresent uswitha fait accompli. 168. In this connexion, 1 am authorized by my Cov-
ernment to shte once again that the United Kingdom
163. For. in the meantirne. the six-month period Covernment has no doubt as to its sovereignty over
during whicb the transfer of the territory of North the territory of North Borneo. and 1 wish forrnaiiy
Borneo to the projectedFederation of Greater Malaysia toreserve its rightsin this connexion.
iscontemplated is about toexpire. My Government
cannot accept this situation wlth equanimity. partic- 169. Perhaps 1 may add that if. after a closer study,
ularly because. as we have pointed out. the transfer any further reply eeems to be requlred to the recent
arrangemen te contaln no provisions for the effective statement of the representative of the Pbilippines,
exercise of the right to self-determinatlon by the my delegation reserves the right to intemene-later
people of North Borneo. We have, therefore, informed inthis debate. ANNEX 2
GeneralAssembOffie ie1ords,4" Cornmittee, 1420"rntg.,
12December1962 -
1420th meeting - 12 December 1962 621
arentand pointed out that his delegation. whichalways Offea by Member Stotes of studyand training facilitfor
*laced credence instatements 01 the same kind made inhobitantsofNon-Self-G~vecnin~.Teririorrepoe of the
by ottier delegatfons,would like to feel that su& an
.tutude was recipmcal. kcrcfav-Guioral (A/5242 and Addl) (continued)
Preparotion and training of indigrnous civil and technicol
42. Mr. ACHKAR(Guinea) emphasized that itwas in
repl~ to a question from his delegation thatthepeti- codres in Non-Self-Goveming Tomtaries: report of hm
tioner hadgiven the information concerned. The peti- Secntoty-Geneml (A/5122, A/SlZ, A/5215, A/S235)
tionerhad not, however. said thathe was referring b (continmd)
Boldiers of the Spanish army. In the opinion of the
delegatfon of Guinea, the statement had not bean Racial discrimination in Non-Self-Goreming Tenitor.rc-
unconsidered, as alï the petitioners had confirmedit. porî of the kcretory-Gen.r<rl (A/SZlS, A/5249 Add1 . )
What would be unconsidered would be ta authotite (continued)
Spanfshnationah tofight for Portugai. Thedelegation
of Guinea. was not questionhg the statemeat of the Eletion io fiIl vacancies ln the mmbaship of the Gmmit-
representati~e of Spain. but it would Iike the Spanish tee on Informotion fmm Non-Self-Goveming Tenitories
~ooernment to know that Spsniarde were fighting
gainet Africans in Africa. (confinumi)
43. Mr. DE PIMES (Spain) said bat he had no inten- GENERAL DEBATE (continued)
don of aliowing himself b be drawn into a sterile 47. Mt. QUINTER0(Philippines) MM tbathe wished
argument. He wished to point out that Spaniarde were to express the reservation of hts Government with
not the only persons to speak Spanteh,and that when regard to the transmission of informaticm by the
~panish soldiers were referred to,that did notneces-
sarily mean that such persona were members of the Government of the United Kingdom on theTerritory of
Spanisharmed forces. Ifthey were mercenaries, that North Borneo.
putan entirely different complexion onthe matter, and 48. The Philippine clah of eovereignty over North
theSpanlsh Government was not responsible for their Borneo had been mentional by the Secretary of
existence. At al1 evaita, it was intolerable to hear Foreign Affaira ofthe Phillpplnes in hisstatement at
petitionersmaking statements without producing any the 1134th plenary meethg of the Geae~l Aesembly,
proof. on 27 September 1962. On 27 November, in theeame
forum (1177th plenary meeting), the Chairman of the
94..Mr. ACHKAR (Guinea) said that alth- itmight Cornmittee of Foreign Affaira of the Philippine Houee
be very easy'for national9 ofcerta* countries to leave of Represeatativee had explaineu the posiUon of the
ttieir eountries, even without passporta. thawas not PhillppPie Governent in its dispute withthe United
the case everywhere. Spaniards. in particular, wh0 Kingdom Government regardhg sovereignty over
wanted to become mercenaries, would have ta leave North Borneo. He would therefore limit himself ta
Spainwithout their passportç. and it was consequently drawuig the'attentiorr ofthe Conmittee tothenaturo ef
impassible for the Spanish Government not tobeaw- the poasessioa by theUnited Kingdom Government of
of their departure.
45. The CHALRMANcalled on the representative of theTerritory in question.
Spain and Guinea not topersist witb anacrimonbuB 49. The Philippines recaUed tbat sovereignty over
the Territory had rernainedvested inthe Sultanate of
discussion. Suluuntii that sovereignty hrM beenceded by the
46. Mr. DE PINïES (Spain) said that he wished to Sultanate in favour of theRepublic of the Philippines.
make clear that his cwuitry wae opai b ailpersone The occupation of the Territory, first byBaronove*
who wanted to enter it or leave it.but the question beck and Mr. Dent, andlater by the British North
was completely unconnected with that raised by the Borneo (Cbartered) Company* had beenoccupation by
petitioner. a lessee or an adminietrator, not occupatio by an
owner or eovereign. The present possession of the
Territory by the United Kingdom Governrnent, which
had succeeùed the Britiah NorthBomeo Company, was
AGENDA ITEMS 49, 50, 51, 52, 53 AND 55 possession by a lessee or admlnîstrator. not paases-
sion by an owner or sovereign.
Infonnotion fromNon-Self-GoveminpTmi tories îransmittod 50. He wished to show, through tbree documents
under Articl73 ofthe Chader of the United Notionr cocahg from United Kingdom eources-namely, an
reports of the Secretaty-Ceneml and of the Committeeon instrument signed by the SultaonfSulu,another inetni-
ment eigned by Bamn Overbeck and Mr. Dent, and a
Infonation from Non-Self-Goveming Tmitories (A/5078 thirddocument signed by the headof the United King-
andAdd.1-19, A/Sû79 and Add.l-6A/S080 and Add.1-19, dom Foreign Office-that Bamn Overbeck and Mr.
A/5081ondAdd.1-5, A/SIZO, A/5215) '(continued): Dent, andthe British NorthBorneoCompany whlchbad
(a)Politicol ond constitutionainformation on' Non-SiIf- succeeded them, had beenexercising govenimental
- pawere which had beendelegated tathem by the Sultan
GoverningTenitorims; of Sulu,eovere@ty remakikrg vested in theSultan.
(4 Information on educotional, economic and social od-
vancement; ' The ~dted KingdomGovernment, which clalmed b
(4 General questions relatin?O thetransmissionmd ex- have acquired aovereign rightafrom theBritishNorth
Borneo Company Laan inetrument called "Agreement
aminotionof inhmnotion for the Transfer of Bonieo Soverelgn Righten, had in
Disseminationof infonotion on ihe United Notions in the reality eucceeded only ta the leaeehold righte of the
British North Borneo Company. The United Kingdom
Non-Self-Goveming Territories:epoe of the Secrctary- Government was therefore exercieing governmeatal
Generol(A/5244 andAdd.1) (continud) powers in North Borne0 miy as an administrator of .
622 General Assembly - Seventee!nthSession - Fourth Committee
the Sultaonf Sulu, inwhom eovereignty had remained HEARlNG OF PETITIONERS (concluded)
vested. At the invihtionof theChairman. Mr. Louis Josepd
51. The firet of the three documenta which he had Maho, represen tative ofthe Mocvement pour i%d&
mention&, appointing Baron Overbeck "Datu Banda- pendence de la Guinde équatoriale, andM. J~sePerea
harag and "Rajahof Sandakann, hadbeen lseued by Epola, representatfm of the Pamdo Poiitico Ida
the Sultan of Suiu on 22 January 1878, and inthat popdkr de la Guinea Ecuatorial. tookplaces at rbe
document, the Sultan of Sulu had very plainly stated Committee table.
ut he was delegathg to Baron Overbeck Ne powers 57. Mr. MAHO(Mouvement pour l'independeocedela
cf gooernrnent. Guinée équatorial rt)anked thé Committee for per-
mittlng him to submit hi8 views on the eituati& ln
52. Secondly, there wae theapplication for a Royal Equatorial Guinea. He wae confident thatthe mmement
charter filed wlth the United K!x@orn Covernment on he represented would recelve from theUnited Nations
2December 1878 by Ba- Overbeck and Mr. Dent on the support which would enable EquatorfalGuLnu
beW of the British Nortb Borneo Compeny. In that rapidly toachieve independence.
application. theycalled the instrument of22 January
1878a delegation of powere and righte ofgoverpment, 58. After summarizing the hietory ofthe Spanish
andin pdragraph 31 of the inetniment they stated that occupation of Femando Ph and Rio Muni, hedweit
pwere of gaveniment had been delegated to them by on certain aspects of Spanlsh .domtiation in thetwo
the Sultan of Sulu. territoriee. Since Equatorial Guine8 was essentially
an agricultural country, the Spanlards had from the
53. Thtrdly, there was an official letter dated 7 outaet started to occupy the mast fertile land. The
January1882 and eigned by Earl Granville. the then indigenous hhabiknts. ejected fmm that land and
head of the Unlted Klngdom Foreign Office. in which reduced to servitude, had no longer been able to
lt was stated that the British Crown aesumed no compete with the Spanish farmers. in spite ofihetr
dominion or sovereignty over the terrltories occupied poverty they had continwd to cultivate theirlands
by the British North Borneo Company, did not grant industriouly until in1942 the Spanish authoritiehad
the Company anypowers ofgovernment, nndrecognized passed a law on land clearance precluding Guineans
the delegation of mer8 by the Sultan. in whom fmm possessing or cultivating more thanfourhectares
sovereignty remained vested. except under certain conditions. In practice the law
54. Consequently, according to the Foreign Office benefited Europeans at the expense of theGuineans.
statement of 1882 the British North Born- Company 59. Theprogress ofa country could be measured by
had had no governmental mer not delegated to it by thedegree of its inhabitante@ educatlon. Since the
the Sultarof Sulu. Moreover. in granting theCompany Spanish occupation, education bad been totally
a Royal charter the United Kingdom Government had neglected. Primary schooling, inboth government and
not vested it with governrnental powers. It followed miesion echools, was lnefficlent and aimed attratiJng
that. when the British North Bomeo Company had lm-grade employees and workers. Secondary chi-
transferred ib righta to the United Kingdom Govern- cation was equally weless, because ofthe notorious
ment on 10 June 1946, the BriUsh Crownhad acquired incornpetence of the teachere andtheracial eegregaUa
only the powers delegated by the Sultao nf Suluwho practised in the schools~n 0-ceof themvernor-
had retained sovereignty over the Terribry. General obliged Guineans toleave scbool attheage of
fifteen, for the local authorities considerd thatlndlge-
55. The Philippine delegation desiredto express the noue inhabitants seeking *aneducatfon at that nge
bety itfelt atthe fightingin Brunei that had beea became dangerou. The only Guineans who cauldcm-
reported in the Press. Brunei wae near the terrltory Unue theirehidiea were thoee chosen for the governe
of North Borneo. Altbough the Phiiippiae Govermuent ment t3erViC!e,to do the most work for the lea6tPaY.
clalmed sovereignty over North Borneoand not mer Otherwiee the phyeical and financial difacultiWere
Brunei, the cmfltct there wu bauid to cause it eo great that few Guineanscouid stay at ecbooieven
de@. It was oppoeed to the uee of force for the they 80 deeired, and ingeneraï ducatian waareeed
settlementof internationaldbputes, andtbatprindple for Eupopeans. The education problem would be
was part ofthecomitry8e Conetttutton asweiiae of the tnsolve under Spanish mie: eveSy echeme for dom
United Nations Charter. Ita respect for bt principle tbat had been submitted to the~overnorCeneral had
had led itsixmonths earïier b wt ofthe United beea rejected. Neverthelese, inspiteofthedlfflculua*
Kingdom Govemment repeatedly thpt repreeentatlves Equatorial Guinea had *enoughyauig men capable of
of the hvo Governmenta might hold a conference in a ffllinal1 indiapeneable posteoncethe countrh yabesn
friendly epirltto aMy the problems and eettle the set free £rom Spanieh oppression.
dispute concerning North Bornw. No answer had eo
far been given to that requeet for a conference. The 60. Sockfy InEquatorial Guinea was dividd b@Ov4
Philippine delegationhad no information on the actuaï completeiy separate gmups, wute and black.Addt-
cause of the tmubles in Bmei. The press reporta tedly eome abuses were dlsappeartng andsome a-
said that the population of Brunel waefightlngbecawe Mg of the population wae taldng place, butgenmw
Ithad been refueed self4eterrnination. The Philippine Speaking thoee changes could deceive only theCuuJ
Government had no means of determtning who wu vlelt~r,and the difference between thetwo categoha
responaible for the present regrettable eituation, but of the popdation remained. The racial problem 4
lt knew that history warrfullof caeeinwhich a people not be eolved whiie the Spaniarde went on treatfatM
had fought becauee ite Jyt claims hadnotbeen met or lndlg~~ue LPbabitants as beasb of burden andnot
ite essential righte hnd been ignored. human belngs. The Afrlcane of ~~uatorial~ub~~~
in a humiliating ~ibtion at u> admmely Io<. /"
56. Mr. WALL (UnitedKlngâom) eald thnt hisGovern- level. The vigea paidto a white workerd " awd
ment had no doubt concerning ib swereignty over worker for the aame job dtf[ered morm~~lY* m
North Borneo, and resel-ved its rights in reapect of Mouvement pou 111nd6pendace de la
thatqueetion. toriale desired for ita country thebaefit ofadoieUnited NationsMalaysiaMissionReport,"FinalConclusionsof the
Secretary-General",14September1963 P: TI^ LUTIONS lUYSL4 1ISSIGN EZDORT
-
r.ical Conclusions of the Secretart--Cer,cral
In response 60 tCe reqcest nzde by the Goverm=nts of ttie r'eàeration of
ivkbye, th- 2e~ribPic of IncccesLa, ~n& the Ze~u'nlic of the Philigsizes, on
5 .4-zgJst 1963, I esree6 to escertain, srior ta 5he establishient of the Federaülon
of ?kloysia, the wlshes O-k= ;?o-le of SzT=ah (?]orth 3czseo) en6 Szror~zk. -4s
fzreseec is cy.cc.i1~~ic~,.t;ior.cl"6 -:xt 1965, r. E-lsslcr bres estzbli~ke~, cczpr'sirg
CYC teas, 'cc= for Szrz-~zk az6 tko otker fcr Sa'rzh (~orf;? Zorxo), k-crkir. =gY
tke s~~~r~rlsioc of q; ?e:sccîl re?fssest~tive. #Ti? X-issicc PAS z~v CCP~L~~CS :Le
-... essig11e6 50' ir, anci hzs re;crteC! ta 'ke-
1 visb, first 05 511, to e:c?reçs n;. grp,titz&e ta tke tb,-et C~ver.xent~ fsr
the csnfl&?.co ttsy glzcefi iz zz 51 rocuesticg tkt 1 shcvd.e mdertz:.,s the tzsl
cf ~scortaining tke üFshes cf thc co'ulct5cn of SGzTnak ara ?!grTh Zcrneo (~~bet)
cc-c~erztlsc to tk.= Mis sicc.
It -;as aLqa;.s uÀàzrstccZ tbet tke eszertzizcent woclc be cc~pleteii trithin e
limite6cerisd. of ti~e, ûr,a TJ csa~~icetic:: of 8 Aigxsz no-ted t.kz e7re,ry efforC,
-;cü1G be =Ce to crspleYe the tzsk as çuickly as -ossiSle. I LIter infcr,-6 t;?p
Caverrzezts co~czrse.' tkt I :;odd ezàeevocr to re'or?; in,yccnclusicns .to tker,b:r
1C Sesten'rer. Euring th? couse of the inquiry, tne Cste of 16 Septen5er 1565 .
vas anno7~lceS by the Governrrest ci'tke Teeration or'.1kk:ra vi5h the concurrtzr-
ci the aritish Got.~r~ment, ?ke Singapcze Goverment or& the Governnezts of ~ebeh
?& %re;lair, for the estzblistin=ro .ft the Federztion of blaysiz. This hzs lea'
to nisucderstanding, confusion, ecd even resentment wug otker ~erties to tk
::mila agrzeaent, which coulà kve been evoided if the date coule have been Lix&
efter qy conclusiocs heà been rezchedanà =de known. T'ere vas no rpfereilcpl to e reTeiendum or plebiscite in the request 17hich
vasaddressed to ne 1 was asLed to ascertein the wishec of the people "wlt~in
the context of Generd Assqbly zi,e$olution 1541 (xv), Prjncjole M of the Araex,
ky e fresh agproncki" wF2ch ir, mjropigon was necessezy "to ersvre canpletc
con?liance with the ~rincigle of self'-àeternination witaln the rnquirerients
abociied in 'Pkinciple CC", kakicg in20 consider2tion certain qi2sstion.s ielcti~g
to the receilt elections The lission ezror~nglf errengeà. fol conçültations ?rit3
the po~ulatioi through the elccted representatfves of the peo-le, le2Csrs of
~olLticd. pal-ties and otlier g:ou~;s ad orguliz~tions, anC uit'n all persocs ?;ho
were ~Ji,7Eng ta' e-fess their vie:rs, end every exfort wzs neàe to ascerte.2~ tke
;riçhes 02 the s2ecfal grouss (>olitical aetzinees and abszntces) ~ientioceii iz =ne
bla,?ilcJcint. Statened Tne LLssicn gethered ar?d stucieà dl avzilable C~ciüeezts,
recorts and other mat-rial ori %ne govermental inçtitutlcnr, ~olitical
organizztj on, electorzl grocesses sr,tri2 t;ro terzltorins, en5 ofner natters
releva~t to its terns of refelence
The Gorenments of the Feàcratlor? of &laia, t'ne Re~uôlic ol" Indoilesie er-C.
the Republic of the ohilip-ines ùee~ed it desirzùle to send observe-s to ?;itneso
,.e cury',ng ozt of 2i:e tesk, 2x2 th? Govei~~mcnt of th? Uni ttcï~Er,~5crn Cec,Ye~ ti~~c
it also wished the sone facLlity Aïthoug3 1 Cid not consiSer the arrag~zents
for observels to Üe JIFL-Z of the Yecretay-Gen=ralls les;onsibility., 1 endeavoue?
to heLp the Govermezts concerned to rzach zgre=ent, anà I m pleaseà thzt z.x
unüerstansng was finaii.1 arrived st so that abse-mers oÏ 2U. tile Govermezts
concerneà coulà be oreserit auring at least FE?? of the inquily It is a mctter
Zor regret that this understanding couid not,have Deen reacheC earlhr, so that
2J.l obsenrers cou7d have bec= oresent in the teArritories for the eztire péricc 5L
Yne inquiries ad that questions of Cetail pe,*t=lning to the status of tiie
obse-rveks unnecess&Yily CelayeC exen fur'Yher their errivel A more congeniai
atnosphere ~~odd h2ve-i eved if the n-ec-cuy f acilities hzd been granted
more promptly 't-y the AUnistering A~lthority !Ille Mission, houever, made ïts
recoriis, including tape recordings of allits hearings, avrilable for the use of
the observer teems to enzble th= to idorn thenselves as fuily as possible al'
what had occurred before their arriva The basic essessrnent which I was asked to rrake has broader irc~lications than
the specific questions enmerated in the request eddressed to me by the three
Goveraments. As mcntioned prrviously, 1 was asked to "ascertain, prior to the
establishmnt of the Federation of Xalaysia, the .wishes of the ceople of Sabah
orth th~craeo) and Sarawak within the context of General Assembly resolution
l5h (xv), Principle IX of the haex, by a fresh epproach, which in the cpinicn
of the ficretoly-Genersl is necesçary to ensure complete complaioice with the
crinciple of self-determinotion within the require~cents esbcdied in Princiole IX" -
Concerning tke integratiûn of a ncn-self-gcve~ing territcry with CI aleadjr
in2apecdest State , Principle IX oro.ride s:
"Inkegrntion should hzve cc= about in the following clrcunstences:
The integretLng territory skould hâve attain-ci an advenced stage of
(e)
self-goverment 7;ith free pclitical izstitutioas, sc thet its ceooles wculd
keve the croacity ta ake a resgorsible ckoice ckou&h inforneci and
dezocra~ic grocesse s;
(b) me integration shoulà be the result of the freely expressed wisnes
of the '~erritc~j's secples acting Kit5 full knowledge of the change in
tkeir status, tneir vishes h=ving Deel expressed thrcugh informed erd
deaccratic processes, irn~a-rti~lly ccnducteù and baeed on universal edult
suffrage. The United Keticns could, when it aeems it necessa-, su~ervise
these prûcesses. "
1 bave given csnsi2eration to the circumstances in which the proposals for
the Fkderation of Meleysia have been àeveloced and discusseà, and 'the sossibility
that people progress'ing through the stages of self-goverment may be les6 able to
consider in an ertirely free ccntext the implications of such changes in their
status, than a society which has already experiezced full self-goverment and the
detemination of its ciwn effairs. I ha-re also been aware titat the ~eoples of the
territories are still striving for a mcre adequate level of educational developmect. HavLng reflected fully on these consideratFons, and taking intoaccount the
framework witU which the Mission's task was perfomeù, 1 have corne ta the
conclusion thet the majority of the people6 of Sebah se or th Borne~l ad cf Sarz~~ak,
have given serious and thaughtfZl1 coiisideration to their future, .- ar,d to the
bplicstions for them of pe-ticlpstion in a Federatiori, of Malaysiz 1 believe
tkat the madority of theni hzve concluaed tbt they wish to bring their Zepezdent
stztus to an ead and to realize their icdependence through freelj ckosen
association with other peogles in their region with whcrn they feel ties of
et.&c associatioc, heritzge, lz~guase, religion, culture, economic rehtiscshi?,
end iàeals and objec tFves 2iot el1 of these consideratiocs are prescat in eqi~zl
weight kt all d?&s, oct it is zj conclusion that the majority of the peo?lts
of the t'do terrltories, h&vhq taken thezn into account, wisb to engsge, vit2
the yeopLes of the Federation of Malsya end Si-qapore, in an enlarpea 7e5zraticn
of ilelaysie through which they can strive togetherto realize the fulfihent
of tkeir destiny
Wïth regarà to zhe more s3ecific questions referraci ta me, uïy conclÿsicns,
eiter the examinathon and verificztion repartec by the Mission, are:
(e) V!le.ysia hes been the subject of wide-soreatï and intensive oublie
debate, and was a =Jar issue in the recent elections in the t'do territûries;
Electoral tegisters were properlj corripileu;
(b)
(c) The elections tooli place in an atmosohere fixe encugh to eczble the
candidates am5 politicsi pertiesto put their case before the electorate,
ar,d the people were able to express
thomselves freely by cesting tbeir
votes in a polling sÿstem which ore*-ded tne besic safeguards for secret
balloting, and measures for the preve,?tion and correction of abuses;
The votes were pr-erly polled e=id counteà
(a) (e) Fersons o.themise eligible to vote but whovere unable to do so
because of detention for politicai activities, or imprisoment for
.polj.tj.caloff ences nimbered sorïle?~hat less than 'lCO in Sa.ravak, and even
less in Sabah (l~ort5 Eon.eo) at the time of the elections. Testizany
given by this grau?, especially in Sara~rek, indiceted that they would
have o~_oosecl t;~ Federation of Weysia if they had participated in ?he
election. me actual votes of this group would not have keo,_?sulYicieat
tc have hed a meteriel effect on the result. The $Sission has given mch
attention to the oossible effect whichCIhe zbsence ol these -ersons,
SOE of rihoriveie cfficlals of the anti-Melzysia gzrty, mig'r??;nrve
bad on the crrq-eigz. The Elission considered the sixilar q~esticz
conceming soze 164 :erscas whose activity was restricted ta scrre extèrit,
but who retained the right to vote. Noting that the anti-V~laysis peity
score2convinclcg elcctoral v2ctories in many ot the erees to which those
Tersons belongei, 1 aacept tGe Mission's conclusion thzt e substzntizl
LYtztion of the czi~eigaing ~otentlel of the gxup o>?osed to the
Feaeretion of Xalzysie h2s rot cccurzea, so es seriously ccc si-.ificzstl~
to hzve ~ffecteii the result O: the election.
(r") The Mission cade sceclal efforts to ohtain reliable icfo=tior.
r5ga-diag ?erson6 uho -ere absent from the territories at the time of
the election, particulerPy es e result of possible political or okher
intimidatian. T5c evidence a-milable indica2ed that the nuaber cf such
yersonr, otkerrrise quaiifieci to vote, did not exceed e feu hucàre5, an2
that their num'oer cculd not heve alfected the results of the election.
1 note that the srinci~al officials cf the garty in Sarawakoppose2 to
the Federation ol Maleysia,agree with this assessinent, and 1 accept it, 0 Eeering in micd the fmdaïnental a~eaent of the tkee pazticipeting
mvernmenta 'in the ?lienila meetings, gd the stataest by the Reoublic of
I~iùonesia end the Republic of the.?hilippLnes that they wcul2 welccme the
foraation of Meleysia srovided that the su~cort cf the oeople of the Ge~itûricç
wes escertairied by me a.!, !hot, in mjropinion, ccnglete ccm;iioi;ce ~kth the
orincl-le of self-detemineticn witEn the requireniects of Ssneral Assccly
resolutl~n 1541(XTI), ?ri,?ci2le IX of 'lke -4;lreu, ves ensur&, ~1y cot;c1~sLo,r,
besed on the fi~dincs cf the blissicc, is thlt or Uctk of tlï~se ccu,"rts there is
CO 5ou.hY =boutthe ~-5hescf a slre~3le ~:oritÿ s2 the se,:::~lz;r,;'these
te~it,~rLes tr~ :ois I :;tke *-ciEstion of >laleÿsi~.
- 9'
in r~ecYLr:~ sy cccclrisicnç, 1 hzre telteri zccou-r,rc: %le cc~:~.Jrn e:c?resseà
vith re~.xrd to t5e ?cl!-ticûl îactors rerÜiti=,g frcn the ccnstizxt:crzf stz?:s ci
. e te--ritories abont i~~~üszces Pur, cut~ide zke c-r-e on tiz- prccotion c;'
-.-
the oroposeà Pederaticn. Giiring these consiCereticr?s their G';.zw~igkt, i~l
reletior, to the essonsi-glliYies ar?d obligations estzbliskea in -4rticle 7,' e~ii
Ge2ersl-l Asseably resol~ition 152.4 (XV) in resgect OZ tite tez.rLtories, I a~
satisfie2 thzt t5e cscclrtsicns sst forth &>ove tzke cogr-izance c? the
requirements setforth in the request a&àzesseci to me cc 5 Auç~st 196 j by tke
Foreign Ministers oz the P.epc5lLc of Iz6cnesinJ the Federetion cf iv'a1o.p erd
the Regublic of the Fkiili-gires .
- Eelore conclüclrig, 1 t73uIà like ta g~y e trlhu2e ts rüylersond
Eegresentative, Mr. L. Mlche2cscre, ~ljrDeocty Renresértzti-~e, &k. G. jmecek,
ab to el1 the na-oers of the United Xetiors Mdeysiz Mission :?ho ecccm_~Cs'm&
a sensiti-~e ad +fficuLt tzsk iri.e reletively shcrt period, but at the sae
time in e thorougn ad w!lolly acïequete ïmmer. In a ser,se, it vas a pity that
the work oÎ the Mission hzà to b. .cccm~lished ;rt,';hincertain àeeàlines. But
1 do feel that,while more tlne mi@ heve ezbled the Xission to cbtein more
cogious aocumen'tation end other evidence, it would ~ot heve &,Secte& the
conclusions to eny signilicent extent . Fra the beginning of this yezr 1 havebecn observiilg the rising tension
in'south East Asia on acco~zut of the differeilces of ooinion arnong the countries
most àirectly interested in the pl'alaysia issue. It was in the ho2e +bat some
fora of United Nations icvolvement night helpto re&uce tension that I agecd
to respond positively to the request made by the Qree Manila powers. 1 woulà
hooe th& the exercisein whi& my colleagues acà I have been invûlvtü in this
regard ,viL have tnls effmt, and that the coming into 'ûelng of It!hysia will
zot yrove to be e continuing sourcc of frictior ânG tension in the are-.
The emei-gerce of ae~esaerit ",eritcrries by a pi.ocess of szlf-detemiza%Lon
to %he status of self-gover~-?1er-~, zither as icde-ezàent sovereig States Gr zs
eutonomcus coqonents of larger units, ha5 al1la:~sbeen one of Che pur2oses of
the Cherter a~d th2 oo2ectives of the UrLted Nations. %=tever the origfzs 05
Lie orooosal of 14alaysfa nay hzve ùeen, Ft seeris tc: ne in the ii&t or' actrizl
eveuts, izcl:iaixg t'ne oreseil% exezcise, tkzt we hz-re witnessed 13 SerawEI4 esci
North Bor3eo the s=5e process leading to self-govemaent. 1 fervent]-y hoce thet
the people of these terri5ories Kiilschleve progres; aca proçperity, anci fixi
their Ïulf ihent as compocent States of M?lagsFa. ArnX 4
Recent Philippinesstatementspertainingto Sipadan ..~IfliZORAKpüRl FROM TEE P-iDMT
Secretxuy, Department ofNatiod Dcfense
C&f-of-Staff, iSrmed Fctces of the Philippines
Cammanding Gend, Southern Command
... Please be infonried that 1 have May directed Pmf. Nur P. Miauari,
(I'vemor, Autonomous Redon ,of Musiim Mindanao (ARMM) and
(:mirman, Southern Phili'ppines Council for Peaceand Develapment
IV':CPD), tonegotiate in behalf ofthe Goverment ofthe Philippines, for
tie reiease of nineteen (19) hostages, mostly foreign nationala, who were
ricgntiyabducteci in Malaysia and have now bttn reportedas bcing heId iE
5 iIuand in Tawi-tawi.
In tbisconnection, yuu arehereby directcdto extend toProf. Misuari
el nec&-ky asaietance for the sucttssfui accomplishrnent ofthrs mission.
For immediate and direct cor~piianct.nESlOINTlAL NI.'NS DES8 ,
itflcO( ch* ProtriSscrv(;i~
Ialoetiiang, Manitn~hlllppllic~ NEWS RELEASE
.MaIl Add~oax:.~>[email protected](7-39 ,
tlsniotAddrazs: Iillp:llrrmr.op~.r~ov.pI~~
------W.--.-.-. ...-...-.--.
No. 4 Mi~y 4, ;J(lO(I
MALAY SlA EXPRESSES SUPPORT FORRPEFi'OIZ'i-3
TO RESCUE SULU fiOS7-AGES
A dei~r~3liuii ul M;;lnysisn ollici.tlsrr?iayetllri Proüidiiiii ,Io!;i.!()l"i.iili:'
Ejerclto Eslrada Wednesday i'iighl tll~ir rjilt~porl feir ' I?F1+>I~'ll~~lll~~f.iirli?
guvorniiient's hsndllng ,ofihe tiostage siliiailor~iri~iili~.
. .,
, I
F'iaas secrrit;ry 7icardo "Dony" Puno Jr. ::.airlliri tlr.il1i.~l:.i-e!:!yriil:
lhis rn!:çsage afler re.'coivir~y a I~riefing ii:orri lui, ~l1illj3~~is;t !~'~llc~;~irr!
mililary olficials in Malaccu?jrig about ths ioli??;li~pdat.c oii c:Ifi~rlrIr) eii:;:.ii't!
ihe salc ri:!uase of Sulu las wliich 'ini:li~de,.o.:., I.riiijtir-1i0.
Maiaysi:-ins, ttirec Garrfians. \wu' )=i.en<:h nntioiials;,Lwo Soiitl)~lrii::~ri::,b~9.
Fiiins, :ind orle ~ebü&se. ..
. .. .(...
Tlia hostages &erg kicinapped Wnrii eii islnrid rcsciit ii''~olr&s;;i tiitl:
later brrilight by Iliclrc;iptors to 'Tallpao town.1n Jrllo:.SiiIii.
. .
.'"l'linMrïlny.sian.dalegathr! nxprnssecftl~oii.st~pf~ortforifho :;LIJ!I:i; i?:.~r
ihe ?hilipplnti govc~rnm,eril is laic1ng.i~resolve (lia situxilon," qriiio soici :i: ri
[]rusu 1:ri~Fiiig aller tlia. nicieting in' Maiacaii~r~rj 9f Ilic C;..i).ic:l(~li.i.~tc:K,
whicti t:i~:ltlas pcililica.$.flairs and nalioiial socirily conc.r.!-. ;,,
,. . . I' .
Puno, wl~o is also the pc-asldanliai spok~sman. sal~i \liu Mi\laysian
delegaUnii wiil ~iriicned, lo Zarriboariya TfiursiJay Io rneel willi' Goverricir bliir
Misuari of ihe A ..iitn,a. cus Raçlon In Muslim;Lllnd~nao (eRMV).
. #-;
biisu~l-i.atccrdlng to ~&ir,, wiil cvnlinuc! Ir, i.ie Il10 ciiid ~]c.iveriinrci i\
riec;oti:~iur.lasketl Lr~*~nçui.oOie safe rc+lcaçool i).it?hr.i~13<jr:;i'I.'uiio :ir10(:(1
Lhat. ihi! inili1;iry conliiii.ié-s Lo cordon oll lti~ aie3 III T;:lipxo wlici3(.! !III-?
vicilms ;:rc bcing tic1d.j 1
l
i7liriu stross~ri nnew [ha[ lhe nagnlialior~s cci1ccirriii.i~'~1l.i~ir.:lc;,i:;rii
Ihe hor.Ingcs ai'@ "1,asicaIly iho (i~ticiiurioI Il~crJliilil~l)iric:govnrs~mi-:~.il."
" 1 '
F11rm r~cii~rIr:?ULJ~ lIi;~\/IC E!:;[r;r~ki ~~~IIII~~I~::II:,I~1;~;~;il;;(i~:(:c:iv~!rl
.sevcs;~" i~~xprcsz~c I)~d ~UI,I~~II\'irc111 lie oi111! ~orc!i:jr!~IIV~,!~I..III~:,1.vl1tr;c,,
Iik~ti~iii~lare r'iow l~eii.i$_H;ld~'l~âtkg ,IIS,utu. .. .
.. ., . ,'
. . Jud two days alter the lasl four Eui-upeanIiri!;logos rlrabbed
i.ilri Sipadan ware released, Ille Abii Sayat
r i in iii
P.;ilüysia. taking wilh them three Mnlaysions firiii:sl~<iih~r diviris
I! :,aiI riotfrr frorn Sipadan.
I'\.10 r:ziriier riu1ec.ithat C!IIC.:!~~~.JVCII.IIIII11:!:jr.t~t,~:.,(:~LI (:y.i II
Fr ibcrr i?ve!itajndo was askured i;y Pltxi S;ryyaf (:nii~in;~~riclc:C.~iirlitl
fI ictang zlias Cornrnander Robot that iiegotiatiuns tai. (lit?!wu t'r~nc:l
1.-)stages. arici Ullah will continue, despitc the ~bd~i~kioiir~l Iiic 11:i.et-
A' irlaysiâns.
~ventajado, accorllng to Funo. is c;iiiiiiistic :!:al
!.Ii~aii:ing hcstages wiil be reieased soon .
"Secretdry Aventajado is confident th21Ilirs n:;itter is luinc - tc
III i.esoIved in the next severzl days. We'll awcrit t1:zt. I.e!'s si?e
$A iat hâp pens." he said. PR! ~IOEKTIAL NEWSOES!<
0111 o or tlle PkSscrntsry
Ma . cafiang. Ma~iiIz, Pltlllpplnes
Tri! 713-36-1' 733-38-3'75337.38 NEWS RELEASE
P.hlIIAddrsas:pnd@ot~s.gor.ptr
-.iilIn( Address: hllp:ll~l~p.Uor.oh -.----- 1. D< ;. o..
4-
AL1 OPTIONS OPEN TO PAUCE IN OEALING WlTH ABU
SAYYAF BUT HOSTAGES' SAFETY IS STILL PRlOR1TY
;\IIoplicris rernain sFen to Malâcanang il? dcaiing wilh the
Abu Sayyar's kldi:aou16~ rampage but the taie i.s!ease of the
liosrz~es reniain a tcp mnsideraticn.
Crnerging frein . Ille Cablnat lisier l- r;ieeting ,at
L1;iiacanang's Mablni liali 'Nedi~esday, Press Çecrecary nrid
Fi tt=idenlial S~okesirian Rlcorda "Ucng" Puna. Jr. said iiu aplions
i~ave Saen ruled out ço far even as tliu govurnineiqr is as
Jelarrnined aa ever to eiisure (he stifetyol !lie cal~t.wec,.
":.I O ilitary acllorl was discursed. ;Ne jÙsl siiq~ly reviewed the
options .6ut as we said. we woi~ld rallier sfrril?ly awnit the
deveic.plrieriis anc! then at 11131pcint, niaybe clisctiuv \I.ie inatter
again," P~rio said.
eu1 Punc deciiried to süy whst o~liur1.jwe!e pi.r:cici)tr:J Jui~iri!]
Ittc irieelino of the Cabir.iei cli,ister cissic,ricLud I:ii:l\li::~i1r.c1iiz;
itivclvinqnaticnal secutity and pence and order.
Asked il Malacanong has i'~iled uiit aily ~iirlilary ul.~Lit?riiii
I~.;iidlin:liehostase crisis.th? Fress S~c:.e!:.~r/aid "ilci nl'tirs oi~t
:~!ho iJiC!Ufeat Lllis lime"
Of the 21 hostages snalched hy tl~ Ahii Sayyi~t lit~iii3Sipaciari
tJivingresort in ~Malaysia last April. u11ly Iz:lir~inuii;'ilinn.3l fii113iid
U113ii rernains iii caniivity: Alsa in llie Ii~iids ul I1:e 6!xlic!riyi'aup
sre lwo French journôlists who were lakeii Iiusincla :ifterIlisy
a!i~ereci Ille laiicf the Abu SayyiiF lu do ;i ~pI.tciiiit.:l~riiiiIlte
Iic~ctcigcrisis.
Arnerican Jellrey Craig Scliilling wllorr:ytl~ttllv wtiiio !%JIU 10
nieet with Abr) Sayyal 1e~dei.s w:k: ;:il!;I;iktir,I..1.i\~iiVt:IJY [lit!
Mlisliirigi'otirearly \liisnioii\li ANNEX 5
PhilippinesOptionalClauseDeclaration,
23 December1971 No. 11523
-
Declaration recognizing as compnlsorythe jurisdictionof
the InternationalCourtof Justice, inconformitywith
Article 36, paragraph 2, of the Statnte of theInter-
national Courtof Justice. Manila,23 December1971
Authentictext: Engfish.
Registercdexoffon18 Janua1972.
PHILIPPINES
Déclarationreconnaissantcommeobligatoirela juridiction
de la Courinternationalede Justice, conformémena tu
paragraphe2 de IYArticle36 du Statut de la Cour
internationalede Justice. Manilie, 23 décembre 1971
Texte authent:anglais.
Enregistréed'ofice le 18janvier 1972. -- --
4 United Nations - Treatv Series 1972
DECLARATION l BY THE PHILIPPINESRECOGNIZINGAS
COMPULSORYTHE JURISDICTIONOF THE INTER-
NATIONAL COURT OF JUSTICE, IN CONFORMITY
WITHARTICLE36, PARAGRAPH 2, OF THE STATUTE
OF THE INTERNATlONALCOURTOF JUSTICE
1,Carlos P. Romulo, Secretary of Foreign Affairs of the Republic of the
Philippines, herebydeclare, under Article 36, paragraph 2, of the Statute of
the International Court of Justice, that the Republic of the Philippinesrecog-
nizesas compulsory ipso facto and without special agreement, in relation
toany other State accepting the same obligation, the jurisdiction of the Inter-
. national Court of Justicein al1 IegaI disputes arising hereafter concerning:
(a)the interpretation of a treaty;
(b) any question of international ;aw
(c)the existence of any fact which, if established, would constitute a breach
of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international,obligation;
Provided, that this decfaration shallnot apply to any dispute
(a) in regard to which the parties thereto have agreed or shall agree to have
recourse to some other method of peaceful settlement; or
(b) which the Republic of the Philippines considerstobc essentiallywithin
its domesticjurisdiction; or
(c)inrespect of whichthe other party hasacceptedthe compulsoryjurisdiction
of the International Court of Justiceyin relation to or for the purposes
of such dispute; or where the acceptance of the compulsory jurisdiction
was deposited or ratified less than 12 months prior to the fiIing of the
application bringing the dispute before the Court; or
(d) arising under a multilateral treaty, unl(1) alparties to the treaty are
also parties to the case before the Court, or (2) the Republic of the Phi-
lippinesspeciallyagrees to jurisdiction; or
--
Depositewith thSecretary-Geneofthe UnitNations o18 January1972.6 Unite Ndations - Treaty Series 1972
(e) arising out of or conceming jurisdiction or rightsclaimed or exercised
by the Philippines-
(i) in respectof thenatural resources, includinglivingorganismsbelonging
to sedentary species, of the sea-bed and subsoil of the continentai
shelf of the Philippines,or its analoguearchipelago,as described
in Proclamation No. 370 dated 20 March 1968of the President of
theRepubIic of the Philippines; or
(ii) in respect of the territory of the Republic of the Philippines,including
its temtorial seasand idand waters; and
Provided, further, that this declaration shall inmforceuntilnotice
is given to the Secretary-General of the United Nations of its termination.
DONEat Manila this 23rd &y of December 1971.
CARLOP S.ROMULO
Secretaryof Foreign Mïairs
No.11523
Observations of the Government of Malaysia on the Philippines's Application for Permission to Intervene