• West Philippine Sea; Sabah and effectivites

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    RECENTLY, there were renewed expressions of concern about the territorial/ maritime disputes in the Spratly, South China Sea/West Philippine Sea and in Sabah or North Borneo. The Philippines has a pending claim on Sabah, while on the Spratly – it has filed an ex-parte case at the Arbitration Tribunal (ITLOS). China has consistently refused to participate in the arbitration proceedings, claiming it has sovereignty over the South China Sea/WPS but is willing to discuss the matter bilaterally with the Philippines.

    In the meantime, China’s reclamation projects, constructions of airports and lighthouses go on especially on the West Philippine Sea, which observers fear, might lead to violent confrontations in view of the reported admonition of the United States to China to stop such activities and settle the dispute by peaceful means. It has been further reported that US plane flights over the area would continue to “protect freedom of navigation.” On the other hand, China reiterated its position that it has sovereignty over the area and is ready to defend that sovereignty.

    Given the tension that has resulted from all that posturing, observers believe a peaceful solution should be found to settle the dispute in the area to avert any violent confrontation.

    The International Court of Justice (ICJ) in The Hague – one of the six principal organs of the United Nations, composed of 15 judges elected for a term of nine years by the United Nations General Assembly and the UN Security Council – serves as its main judicial organ for peaceful solutions to territorial disputes. It acts as a world court and has dual jurisdiction: (1) deciding disputes brought to it by states and (2) giving advisory opinions on legal questions at the request of the United Nations.

    Records show that countries of Southeast Asia have turned to the ICJ on three occasions to resolve their disputes. The first was Cambodia v. Thailand in 1959 on the Preach Viper Temple; the second, in 1998, on the Indonesian-Malaysian sovereignty dispute regarding Ligitan and Sipadan islands; and the third, in 2003, on the Malaysian-Singapore territorial dispute over Pedro Branca, Middle Rocks and South Ledge.

    Principles of uti possidetis; self-determination and effectivites
    Aside from the above-mentioned countries of Southeast Asia, there are other countries in the world that have turned to the ICJ or International Institutions to solve their respective territorial-maritime border disputes. They were Cameron v. Nigeria; Nicaragua v. Honduras; and Qatar v. Baharain.

    The principle of “uti possidetis” has been invariably applied on South America, Africa, and other regions where centralized governments were broken up or imperial rules were overthrown. It is often applied to prevent foreign intervention by eliminating any contested terra nullius, or no man’s land, that foreign powers could claim, or to prevent disputes that could emerge with the possibility of redrawing the borders of new states after independence.

    Thus, uti possidetis juris or uti possidetis is a principle of international law, which provides that newly formed sovereign states have the same borders that their preceding dependent area had before their independence.

    The scope of the principle of “uti possidetis” was clarified by the ICJ in the Burkina Paso case by stating the pre-eminence accorded to legal titles over effective possessions as the basis of sovereignty, which are now generally recognized by the countries of Africa. The African countries, however, reinterpreted this principle by including the principle of “territorial integrity.”

    It may be noted from the above-mentioned cases that the essence of uti possidetis lies in securing respect for the territorial boundaries at the moment when the independence of a country is achieved, resulting in administrative boundaries being transformed into international frontiers, such as in South American states under the Spanish Crown.

    This principle may appear in conflict with the right of peoples to self-determination or in the process of decolonization. Be that as it may, the principle of uti possidetis has retained its relevance among the most important legal principles such as self-determination and effectivites despite the apparent contradictions, because the parties have invoked the principle of “colonial effectivites” – the conduct of administrative authorities became proof of effective exercise of territorial jurisdiction over the region during the colonial period.

    According to jurists, where the act does not correspond exactly to law, where effective administration is additional to uti possidites juris, the only role of effectivite is to corroborate the exercise of the right derived from a legal title. However, where the act does not correspond to the law, where the territory that is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that effectivite does not coexist with any legal title, it must invariably be taken into consideration.

    Effectivites, as upheld in the Ligitan-Sipadan islands dispute between Indonesia and Malaysia, may be defined or understood as: “In the absence of a treaty-based title, effective administration and quasi-judicial acts with an intention to exercise State function, such as some economic activities and construction of lighthouses, and there being no expression of disagreement or protest from the other party, shall be taken into consideration in determining which party has sovereign ownership over a territory.”

    Thus, the role of effectivites or relations of said principle with uti possidetis is of sustaining complementarily the boundary based on the practice and conduct of parties over the years which, in effect, is similar to the principle of uti possidetis juris (de facto). Consequently, effectivite comes in to adjust, vary or amend such boundary as may be structurally established by legal title.

    Observation
    As decided by the ICJ on the Ligitan-Sipadan islands case between Indonesia and Malaysia, where there was no treaty-based title by both parties to the islands, the Court applied the principle of effectivites – acts of sovereignty, provided there has been no opposition from the other party involved in the dispute. In the words of the ICJ: “at the time when these effectivites were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest.” The Court, on the basis of “effectivites,” awarded sovereignty over the two islands in favor of Malaysia.

    China, whose declared claim of sovereignty on the Spratly (South China Sea / West Philippine Sea) is based on old maps and a “nine-dash line” and has not invoked any treaty or convention, appears recently to be applying the principle of effectivites.

    On the other hand, based on published reports, the Philippines claims Bajo de Masinloc and the maritime area as part of its Exclusive Economic Zone (EEZ), to which it has entitlements under the UNCLOS.

    With respect to Sabah, the Philippines is claiming it on a “historic and legal title” basis and seeking either judicial settlement or other peaceful means as agreed upon by Indonesia, Malaysia and the Philippines in the 1963 Manila Accord.

    It has been observed that UNCLOS or the Arbitral Tribunal deals with issues regarding entitlements of countries to explore, exploit and protect ocean natural/marine resources, while the ICJ decides on questions of sovereignty with respect to ownership of territory. In both cases, the principles of uti possidetis and effectivites play a vital role and that all disputes should be settled by peaceful means in accordance with the UN Charter and the 1955 Bandung Declaration.

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