WHY THE PHILIPPINE CLAIM OVER SABAH IS LEGALLY FLAWED
By: Marja Azlima Omar, Senior Lecturer in International Relations, Faculty of Social Sciences and Humanities
KOTA KINABALU: The recent call by Robin Padilla urging the revival of the Philippines’ claim over Sabah is fundamentally inconsistent with established principles of international law.
A careful doctrinal analysis also reveals that such a claim is politically charged that lacks both legal foundation and contemporary validity.
For many Sabahans, such statements are not just inaccurate, but also unsettling, because they question a settled identity and belonging. Essentially, the revival claim over Sabah is legally flawed as it is disconnected from the lived reality of Sabah and its people today.
Any attempt to frame Sabah as an unresolved territorial question overlooks this fundamental stark reality.
From the standpoint of international law, the position is clear. Under the doctrine of effective occupation and administration (effectivités), sovereignty is determined by the continuous and peaceful display of state authority. Since the formation of Malaysia in 1963, Sabah has been administered as an integral part of the federation.
The government of Malaysia has exercised uninterrupted authority over Sabah clearly manifested through legislation, law enforcement, taxation, infrastructure development, and international representation.
This aligns well with the jurisprudence of the International Court of Justice, particularly in cases such as Ligitan and Sipadan (2002) and Sovereignty over Pedra Branca/Pulau Batu Puteh (2008), where effectivités were major deciding factor in affirming sovereignty.
Beyond legal doctrine, there is also a more decisive factor i.e. the will of the people It is without a doubt that the principle of self-determination, enshrined in Article 1(2) of the United Nations Charter, directly and profoundly undermines the Philippine claim. Prior to the formation of Malaysia, the people of Sabah participated in an UN-facilitated consultation process under the Cobbold Commission, 1962.
The self-determination exercise concluded that the majority population supported the motion to join Malaysia and ensued the Federation of Malaysia was established.
The United Nations subsequently acknowledged the process which in turn provided a strong legal weight to the expression of popular will. In modern public international law, self-determination is a customary international principle of jus cogens norm that can neither be abrogated nor can it be overridden by historical or dynastic claims.
If one were to revisit historical claims largely derived from what transpired between the Sultan of Sulu and the British North Borneo Company in 1878, the legal characterisation of the agreement as to whether it was a lease or cession, has long been disputed.
In this case, even assuming arguendo that residual rights existed, such claims would still face significant obstacles under the doctrine of intertemporal law and state succession. The state succession i.e. transition from colonial administration to sovereign statehood (Malaysia) effectively supersedes private or pre-modern arrangements, particularly when the latter were not continuously asserted or enforced in a legally consistent manner.
In other words, the absence of consistent legal assertion over time renders such claims untenable today. There is also a practical reality that cannot be ignored. For decades, Malaysia has exercised uninterrupted governance over Sabah, while the Philippine claim has not been pursued through effective legal channels or international adjudication. In international law, prolonged inaction matters. It signals acquiescence and weakens any remaining basis for claim.
The cornerstone principle of territorial integrity post 1945 international legal order precludes unilateral assertions that threaten the sovereignty of an existing state. Article 2(4) of the UN Charter prohibits not only the use of force but also actions that undermine the political independence and territorial integrity of states. Attempt to revive dormant and/or weakly substantiated claims risks destabilising stability and order, particularly within ASEAN regional cooperation, that is grounded in norms of mutual respect, non-interference and territorial integrity.
In sum, the revival claim is not supported by contemporary international legal standards. It disregards the decisive role of effectivités, the binding nature of self-determination, and the stabilising function of territorial integrity. Rather than advancing legal coherence, such rhetoric risks politicising a matter that has, in substance, already been settled within the framework of international law.
Ultimately, Sabah is not a question waiting to be settled. It is a state with a people whose identity, rights, and future are already grounded within Malaysia. Calls to “revive” the claim may generate political attention, but they do not alter the legal position, nor do they reflect the reality on the ground.
