Wednesday, 10 September 2014

Self-determination is the standard - Tan Sri Abdul Ghani Patail

By Tan Sri Abdul Ghani Patail

U.N. APPROVAL: The Cobbold Commission ascertained views of the people of North Borneo and Sarawak on the proposal to join Malaysia

THE catalyst for the United Kingdom's agreement to grant independence to its colonies, including Malaya and later Sabah (and Sarawak), lies in the establishment of the United Nations.

With its establishment in 1945, the international community showed growing concern with regard to the position of territories of all kinds which had not attained independence and the condition of their inhabitants.

Self-determination, usually leading to independence, accordingly became the standard proclaimed by the international community.

The UN Charter in Chapter XI contains the "Declaration Regarding Non-Self-Governing Territories" in which member states of the UN administering territories "whose peoples have not yet attained a full measure of self-government recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost ... the wellbeing of the inhabitants of these territories".

That obligation includes in particular the duty enshrined in Article 73(b) of the UN Charter "to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement".

The principle of self-determination has gradually transformed from a mere acknowledged principle in Article 1(2) of the UN Charter into a legal right recognised in international legal instruments under the auspices of the UN.

In 1970, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, the principles of which are declared to "constitute basic principles of international law, elaborated the principle of equal rights and self-determination of peoples".

An important element in the principle of self-determination recognised in UN instruments is that self-determination must respect the freely expressed wishes of the people in question.

Article 73 of the UN Charter lays down that the interests of the inhabitants are "para-mount"; and the International Court of Justice has emphasised the need to pay regard to the freely expressed will of the peoples concerned.

These wishes are normally to be established by the usual political processes of the territory (for example, elections), but in some circumstances it may be necessary to make special arrangements, for example by holding a referendum or arranging for a UN mission to verify the expression of the peoples' views.

In fact, further visiting missions may be ordered by the UN to satisfy itself of the will of the people. Based on the UN practice in ascertaining the valid exercise of self-determination, it appears that requiring a referendum or a UN mission is considered only when necessary. Otherwise the UN will not intervene in the self-determination process.

The integration of Sabah (and Sarawak) into Malaysia was unconditionally accepted by the UN as a valid exercise of self-determination by its peoples, firstly through the findings of the UN Malaysia Mission and subsequently by the removal of North Borneo (and Sarawak) from the list of non-self-governing territories maintained by the UN.

In April 1962, the Cobbold Commission was formed to ascertain the views of the peoples of North Borneo and Sarawak on the agreement of the governments of the United Kingdom and the Federation of Malaya to include North Borneo and Sarawak (together with other territories) in the proposed Federation of Malaysia and to make recommendations in the light of their assessment of these views.

The Cobbold Commission spent a total of about four weeks in North Borneo and managed to complete all its sessions with the people before concluding its enquiry on April 18, 1962.

The commission unanimously agreed, in the light of their assessment of the views of the peoples of North Borneo and Sarawak, that a Federation of Malaysia was in the best interests of North Borneo and Sarawak.

On June 21, 1962, the Report of the Cobbold Commission and its findings were completed and submitted to the prime ministers of Britain and Malaya.

The report was considered in detail in a series of meetings between British and Malayan ministers in London in July 1962.

The final report was published on Aug 1, 1962. The Cobbold Commission determined from the enquiry that two-thirds of the peoples of North Borneo were agreeable to the proposal for Sabah to join Malaysia while less than 20 per cent of the people disagreed with the proposal.

The Manila Accord of July 31, 1963, between the Federation of Malaya, the Republic of Indonesia and the Republic of the Philippines, entrusted the United Nations Secretary-General with the task of ascertaining the wishes of the people of North Borneo.

He reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and to the implications for them of participation in a Federation of Malaysia.

He believed that the majority of the peoples of Sabah (North Borneo) and of Sarawak "have concluded that they wish to bring their dependent status to an end and to realise their independence through freely chosen association with other peoples in their region".

He further added that the "fundamental agreement of the three participating governments in the Manila meetings, and the statements by the Republic of Indonesia and the Republic of Philippines that they would welcome the formation of Malaysia provided that the support of the people of the territories by me and that, in my opinion, complete compliance with the principle of self-determination within the requirements of General Assembly Resolution 1541 (XV) Principal IX of the Annex was ensured; my conclusion based on the findings of the mission is that on both these counts there is no doubt about the wishes of a sizeable majority of the peoples of these territories to join in the Federation of Malaysia".

In fact, in the 2001 Application by the Philippines for Permission to Intervene in the Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), the International Court of Justice per Ad Hoc Judge Franck discussed the impact of the principle of self-determination on historic titles and emphasised that it is basic to the international rule of law that historic titles cannot, except in the most extraordinary circumstances, prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.

The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election.

It is established fact that the state of Sabah has been, is and remains a legitimate and integral part of Malaysia since Sept 16, 1963, Sabah having joined the Federation of Malaysia as a newly independent state following its decolonisation by the United Kingdom, based on the wishes of the people of Sabah.

The independence of Sabah before it joined Malaysia having been gained and established through the legitimate exercise of the right of self-determination, as expounded under the UN Charter and international law, its status as part of Malaysia today is firmly established under international law and beyond dispute.

Therefore, any purported claim put forward by the self-styled sultan of Sulu on behalf of the self-proclaimed sultanate of Sulu today to the territory of Sabah or any part of it has no legitimacy or merit.

Source: Self-determination is the standard - Columnist - New Straits Times



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