1. What is the nature of the case ?
It is a request for intervention on the part of the Philippines in the case between Malaysia and Indonesia regarding sovereignty over the islands of Sipadan and Ligitan. The Philippines requested to intervene in this case under Article 62 of the statute of the International Court of Justice because it is of the view that the decision of the ICJ in that case or its reasoning involved in that decision will adversely affect the legal interest of the Philippines as regards the interpretation and application of certain treaties and agreements which it relies on in its claim over Sabah.
2. Since the ICJ’s decision does not allow the Philippines to intervene, how does this decision affect the Pi claim over Sabah?
The ICJ decision does not affect in any way the merits
of the Philippine claim to Sabah. The Philippines requested intervention
in the case as a non-party. In other words, the Philippines, in seeking
to intervene, did not intend to become a party to the case: between Malaysia
and ndonesia. Its purpose is a limited one, namely, to have the opportunity
to explain and show to the ICJ that its claim to Sabah may be adversely
affected by the Court's decision or by its reasoning in arriving at that
decision if the Philippines would not be given the opportunity to be
heard in the case between Malaysia and Indonesia .
3. Did the ICJ accept same points presented by the Philippines in the oral arguments?
Yes. As against the arguments advanced by Malaysia and Indonesia, the ICJ ruled:
(1) That the Philippine application to intervene still was filed on time;
(2) That despite the fact that the Philippine application did not contain a full list of documents in support of its claim, still the ICJ concluded that this did not constitute a formal defect; and.
(3) That the absence of jurisdictional link between the
Philippines and the Parties to the main case (Malaysia and Indonesia) is
not a ground
for disqualifying the Philippines from intervention. The ICJ recognized that the Philippines sought to intervene as a non-party and therefore does not require such jurisdictional link.
Above all, the ICJ accepted the hypothesis of the Philippines
that to establish interest of a legal native, such an interest does not
pertain to the operative decision of the ICJ but to the method of reasoning in arriving at that decision.
4. On what ground did the ICJ disallow the intervention by the Philippines?
On the ground that failed to show with “sufficient clarity” or “particular clarity” in what way will the interest of legal nature on the part of the Philippines would be affected by the decision and reasoning of the ICJ as regards the treaties and other agreements which the Philippines relies on in its claim to Sabah.
We are critical of this reasoning because it implies that the Court, knowing that the parties (Malaysia and Indonesia) refused to give the Philippines copies of their pleadings, would now require the Philippines to show in advance the full basis of their claims in terms of applicable treaties and agreements.
The Philippines is of the position that this requirement of the Court could have been met by the Philippines in the principal case had it been allowed to intervene and therefore would have had the benefit of the pleadings of Malaysia and Indonesia.
International Court Denies Philippine Intervention, But Assures RP on Sabah
When Indonesia and Malaysia brought their territorial dispute over Sipadan and Ligatan islands to the International Court of Justice in 1988, Philippine officials were concerned about the implications of that dispute on the Philippine Sabah claim. It was suspected that the Philippine sovereignty to claim Sabah could be prejudiced by the arguments and submissions that would be made by Malaysia and Indonesia to the Court. Ligatan and Sipadan, made famous early last year with the notorious kidnappings of western tourist by the Abu Sayyaf, lie close to the Federal State of North Borneo. Philippine officials through Malaysia may take advantage of its legal dispute to consolidate its hold on Sabah. The fear was an argument from Malaysia which would establish its ownership of Sipadan and Ligatan on the basis of its sovereignty over Sabah.
To protect its interest in Sabah, the Philippine government in March this year, went to the International Court to seek permission to intervene in the on-going dispute between Indonesia and Malaysia. The Philippine legal team, headed by DFA Undersecretary, Merlin M. Magallona, argued the Philippine position last June in the International Court in The Hague.
In its decision dated 23 October 2001, the International Court found that the Philippine claim to Sabah will not be affected by the on-going case between Malaysia and Indonesia. The Court, therefore, declined to grant the Philippine request to intervene.
The International Court, in a landmark decision, explained that the Philippines has a heavy burden of proving the connection between its claim to Sabah, on the one hand, and the competing claims of Indonesia and Malaysia on Sipadan and Ligatan, on the other. And because the Philippines was not given copies of the Malaysian and Indonesian pleadings in the principal case, this burden of proof was even more difficult to discharge. The Court ruled that it was not convinced that the Philippine fear about a possible prejudice to its territorial interest in North Borneo was well established. Citing various international agreements that the Philippines had earlier identified to support its Sabah claim, the Court said that not one of these said agreements, including the famous 1878 lease of Sabah granted by the Sultan of Sulu, was relied upon by Malaysia and Indonesia in their respective arguments to support their competing territorial claims to Sipadan and Ligatan. In answering the major issue posed to the Court, the decision concluded that the Philippine claim to sovereignty in North Borneo “could not be affected by the Court’s reasoning or interpretation of treaties in the case concerning Pulau Ligatan and Pulau Sipadan”. In addition, the Court assured everyone concerned that it “remains cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines”.
Commenting on the decision, Undersecretary Magallona of the DFA, expressed his relief on the Court’s assurance that the Philippine Claim to Sabah will not be affected in any way by the decision of the Court in the main dispute between Malaysia and Indonesia. “Our main objective was to protect the integrity of our historic title to Sabah. We have achieved that objective even if we were not allowed to intervene. So inspite of appearances, the decision of the International Court is really good news for us.”
Undersecretary Magallona also noted that the heavy burden of proof imposed on the Philippines in order to allow it to intervene established a new rule of international law. “No one knew about the level of proof that was expected to be demonstrated by the Philippines. Not Indonesia. Not Malaysia. Not any country. We believe that establishing a “prima facie” case was sufficient. There was no previously established rule that could have given us guidance on the level of argument and proof needed. But then the Court invoked a new standard that it applied to us ex post facto. This is usually how international jurisprudence develops.”
Undersecretary Magallona also congratulated the
Philippine legal team on a job well done. “Each one of the arguments made
by the Philippines, and specifically opposed or objected to by Malaysia
and Indonesia, was upheld by the Court in our favor. Our arguments
on matters of procedure or substance were upheld because they were superior
to the counter-arguments of Malaysia and Indonesia. On the
critical issue of burden of proof, neither Malaysia nor Indonesia, nor
even the Philippines, had any idea about that issue. There were no arguments
or counter-arguments on that point.” He concluded, “While we lost the battle,
our case has led to a much needed clarification of rules of intervention
in the international court, and in that sense we have helped advance the
cause of the international rule of law. As a bonus, we have put on record
a territorial claim to North Borneo, and the Court has assured us that
it will not do anything that will prejudice this historic claim.”