HOW THE SABAH CLAIM ORIGINATES – Part 5 The Jurisdiction of The International Court of Justice – By Awang Kerisnada bin Awang Mahmud

( This article is written with special reference to the Sulu claim of Sabah and the decision of ICJ in the LIGITAN AND SIPADAN ISLAND DISPUTES)

There is a request for me to emphasise on the jurisdiction of the INTERNATIONAL COURT OF JUSTICE and in particular to island disputes.

The ICJ does not have any particular constitution on it’s own because it is a Judicial organ of the UN. Thus the existence of the ICJ is based on the United Nations Charter. The International Court of Justice decides on cases which member states bring to it and gives legal advice to any UN organ. Since there is no international constitution, the Court bases its decisions on treaties, universal principles of law, international customs, and of course by precedent from similar cases. Those serving on the Court will not debate and vote on resolutions, but rather will hear cases and make legal decisions based on arguments and the aforementioned methods for reaching a decision.

HOW THE INTERNATIONAL COURT OF JUSTICE OPERATES AND THE COBBOLD COMMISSION

Just to simplify matter, the International Court of Justice is an International Court … created under the United Nations constitution. It is one organ of the UN. And just to refresh back all our memories – Sabah, Sarawak and Malaya formed Malaysia after the Cobbold Commission had performed it’s duty UNDER THE AUSPICIES OF THE UNITED NATION. The findings of the Cobbold Commission was endorsed and accepted by the UN Secretary General and the General Assembly.

Therefore :

(1) the ICJ could not override the finding and decision of a UN General Assembly because the ICJ is part of a UN organ. ICJ was created by the UN in it’s 1945 Charter

(2) ONLY MEMBERS OF THE UN have rights before the ICJ ( see Article 92 to 96 of the UN ). If we are to look specifically at Article 93 of the United Nations Charter, all member states of the United Nations are also members who have legal standing or ” locus standi ” to bring a case of dispute before the ICJ. This has the above implications and consequences as follows :

(a) a country which is a UN member can bring matters before the ICJ

(b) any country which is not a member of the UN cannot bring matters before the ICJ. Sulu is not a member of the UN and NOT EVEN A COUNTRY and it’s so-called sultanate is not even provided for or not even recognise in the Philippines Constitution 1987

(3) Any disputes between countries and for the ICJ to hear them, then at the preliminary, both countries must agree to bring their disputes to the ICJ. If one country disagree then there can be no case heard before the ICJ…
( see the case of the Nottebohm Case (Liechtenstein v Guatemala), [1955] International Court of Justice Reports 4 )

(4) This means that for any case of dispute is to be brought before the ICJ, then the ICJ must ensure that both parties i.e. the UN member countries must agree to take their dispute to the ICJ. This is different and in distinct contrast of an ordinary civil suit where one party may sue another party. THE PROCEDURES IN THE ICJ ARE COMPLETELY DIFFERENT. No one country can take another country to the ICJ if that other country refuses to be brought as a party. ( see the whole UN Charter of Articles 92 to 96 )

Since ICJ is a ” Judicial Organ ” of the UN then it can never override a fact finding of the Cobbold Commission which was endorsed and accepted by the United Nations.

THE DICTUM OF THE ICJ RULING AND IT’S LEGAL CONSEQUENCES ON THE STATUS OF SABAH

Public hearings were held from 3 to 12 June 2002, at which the Court heard the oral arguments and replies of:

For Indonesia:

His Excellency Mr. Hassan Wirajuda, – Minister of Foreign Affairs
Sir Arthur Watts,
Mr. Alfred H. A. Soons,
Mr. Alain Pellet,
Mr. Rodman R. Bundy,
Ms Loretta Malintoppi.

THE MALAYSIAN TEAM

For Malaysia :

Malaysia Special Representative and consul His Excellency Mr. Tan Sri Abdul Kadir Mohamad,

Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of International Law, University of Cambridge, member of the Institute of International Law,

Mr. Jean-Pierre Cot, Emeritus Professor, University of Paris 1 (Panthéon- Sorbonne), Former Minister,

Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, member of the Institute of International Law,

Mr. Nico Schrijver, Professor of International Law, Free University, Amsterdam, and Institute of Social Studies, The Hague; mernber of the Permanent Court of Arbitration,
as Counsel and Advocates

Datuk Zaitun Zawiyah Puteh – AG Chambers

Her Excellency . Dato’ Noor Farida Ariffin, – Malaysian Ambassador to the UN

THE RULING OF THE ICJ

On the 17th. December 2002 the ICJ had sat in the Hague and had made an important landmark ruling in the Sipadan and Ligitan island disputes… The Corum of Judges of the ICJ made a ruling also to the effect that :

“…….On 19 April 185 1, Spain and the Sultan of Sulu concluded an “Act of
Re-Submission” whereby the island of Sulu and its dependencies were
annexed by the Spanish Crown. That Act was confirmed on 22 July 1878
by a Protocol whereby the Sultan recognized “as beyond discussion the
sovereignty of Spain over al1 the Archipelago of Sulu and the dependencies
thereof’…….”

Therefore it is safe to conclude that the ICJ has already made it’s decision on the question of Sabah and thus could not depart from it’s own ruling in future cases before it.

The Author of this article is a Session Court judge. He may be contacted at http://www.facebook.com/awangkerisnada.awangmahmud?fref=ts