The issue of Sabah or North Borneo, as it was known till 1963¹, was brushed under a legal carpet of convenience ever since the Malaysian Federation was formed. Sabah lies on the island of Borneo, the world’s third largest island astride the maritime routes of ASEAN. 73% of the island is the territory of five Indonesian provinces. It proposes to have its new capital in the resource rich island which it calls Kalimantan.² The small country of Brunei is located on Borneo and the remainder is the territory of Sabah and Sarawak in Malaysia.

The issue was reignited when the Philippines Foreign Secretary, Teodoro Locsin, Jr. challenged an innocuous US embassy tweet in July 2020, on humanitarian assistance to Filipinos who came from Sabah. The Filipino minister said Sabah was not in Malaysia. A diplomatic spat ensued with Malaysia, who also approached the UN, not ASEAN.³

Sabah was gifted by Brunei to the Sultan of Sulu islands (now in southern Philippines) around 1600. Sulu was a sultanate which joined the Philippines while its claim over the eastern part of Sabah was rested. Malaysia claimed the entire Sabah in line with colonial treaties held by the British North Borneo Company in 1878. Sulu, and consequently the Philippines, say that the land was leased while the English version, which Malaysia claims, is that the territory was ceded. Also, in 1878 Sulu surrendered sovereignty to Spain. Thus, arose contention between the UK, Spain and Germany in colonial times but adjustments were made to stay out of each other’s way through the Madrid Protocol of 1885.⁴ Malaysia further claims that a UN commission consulted the people of Sabah while announcing its accession to Malaysia in 1963.

When Malaysia was being formed, Philippines President Diosdado Macapagal's position was that North Borneo was their territory.⁵ It ruptured diplomatic relations when Malaysia incorporated Sabah. These were quietly resumed withthe Manila Accord of June 1963 between the two and Indonesia.⁶ At this time Philippines accommodated Malaysia by leaving the Sabah issue to a future determination.⁷ In 1968, President Marcos attempted a military strike through specially trained forces, which was aborted but not without causing concern.⁸

When ASEAN was born in 1976 the atmosphere was more conducive. At the ASEAN Summit in August 1977, Philippines President Marcos announced that he would try and end this left-over issue but this was not followed up. When diplomatic ties with Malaysia were normalized, Philippines ceased to press the Sabah issue either bilaterally or within ASEAN.

In 2002, the International Court of Justice (ICJ) took up a case between Malaysia and Indonesia on the islands of Ligitan and Sipadan. Philippines sought to be impleaded as a claimant to the North Borneo as successor to the State of Sulu but the ICJ declined their request as it did not see these islands, despite proximity to North Borneo, as linked issues.⁹ The Islands were awarded to Malaysia. The issue has laid there like a sleeping dragon.

In February 2013, about 230 armed men from Southern Philippines, associated with the Sultan of Sulus family, attempted an incursion into Sabah. Many were killed and some are in jail but this was not officially supported by the Philippines.¹⁰ Meanwhile Philippines in particular has suffered erosion of some islands at the hands of the Chinese, and Malaysia and others are also taunted by the 9-dash line. The new spat seems like a seven-year itch in Philippines –Malaysia relations and disturbs ASEAN.

The dormant issue never quite dealt with the 300,000 Filipinos who live in Sabah. Or with its links to Mindanao, a Muslim dominated area which has its own issues with Manila and the feeling among the Muslim minority that Sabah is theirs through Sulu claims. The local terrorism in Southern Philippines has been an issue too, since they show signs of affiliation to the IS.¹¹

Southern Philippines islands in the Sulu and Celebes Seas are a part of informal trade with Sabah. The unsettled nature of this impacts development of trade in the Brunei-Indonesia-Malaysia-Philippines East Asean Growth Area, a subregional grouping in ASEAN that is the counterpart of the Greater Mekong Subregion.¹² The revived claim will further dilute this.

The new move could weaken ASEAN’s resolve to deal with China as they negotiate a Code of Conduct. It evokes alarm bells as several ASEAN countries have overlapping claims among each other in the South China Sea (SCS) which have been dormant and could now be revived. The Philippines won a case at the Permanent Court of Arbitration (PCA) in 2016¹³ that historic rights had no bearing on law but now seeks to lay claim using historic rights rather than the rule of law ASEAN espouses. As if ASEAN countries are not challenged adequately by China in the SCS, they are now reviving their own problems too!

Since Duterte has not raised the issue, Locsin is seen as perhaps trying to use Sabah as a cover for also reemphasizing the issues that they have with China. Staking claims against China in the West Philippines Sea may seem softer if tagged with claims to Sabah.¹⁴ Malaysia also lays claim to a 200-mile EEZ from North Borneo which led to a Filipino protest to the UN in 2019¹⁵

ASEAN has done well to hold its pack together after the travails of Malaysian formation and the Vietnam War. It had rarely had to face such mutual attacks on each other by member states. The Preah Vihear case between Thailand and Cambodia and the recurrent Rohingya issue in Myanmar have been difficult for ASEAN to handle.

ASEAN has built a multifaceted community including a defence and security pillar. At inception, it lacked specialsied systems to deal with internal disputes unlike the African Union which has its own Peace and Security Council etc. Lack of avenues to help hold the peace and prevent escalation often leads to holding the situation and putting issues on hold as in the Sabah case.¹⁶ ASEAN is hindered as it has no mechanism to bring in non-State actors into the process as it found when the Sulu irregulars intruded into Malaysia. ASEAN preferred to see it as Malaysia’s internal problem even though cross border intrusion was evident; it was only the then Indonesian President Susilo Bambang Yudhoyono who mentioned that ASEAN and its Chairman must deal with such issues in 2013.¹⁷

However, it is evident that mechanisms for intra ASEAN peaceful settlement of disputes exist but are not invoked. The Treaty of Amity and Cooperation (TAC) in SE Asia of 1976 which all ASEAN members and many of their friends have signed does provide a mechanism for such cases but it remains unutilized in 44 years. In its preamble it notes:

CONVINCED that the settlement of differences or disputes between their countries should be regulated by rational, effective and sufficiently flexible procedures, avoiding negative attitudes which might endanger or hinder cooperation;¹⁸ TAC provides that differences and disputes are to be settled by peaceful means without resort to force.¹⁹ Pacific settlement of disputes is mentioned in Articles 13-17.

The TAC Article 14 stipulated that a Ministerial body should exist on a continuous basis to take stick of disputes if they arise. This never appears to have been constituted. This High Council can take cognizance if bilateral negotiations do not generate a solution. The Council can suggest or undertake conciliation, mediation and the like to prevent deterioration (Article 15) Article 16 stipulates that all sides to the dispute must concur to relate to the High Council for resolution and another member can also take up efforts to resolve the issue. Final recourse to the UN is admitted (Article 17). Economic development and migrant workers are high on the agenda of ASEAN integration and the failure to resolve the Sabah conflict could only exacerbate existing unrest and provide a catalyst for further violence and instability.

The issue of the Rohingya in Myanmar does not see unified ASEAN positions. The Muslim countries have a greater concern than others. Thus, no cohesive action was planned as the matter was internal to Myanmar. But Indonesia has on every such occasion undertaken efforts to reach out to Myanmar and Bangladesh leaders, civil society and people on the ground. There has been Indonesian action (and also Malaysian action) to alleviate the suffering.²⁰ But they have not attempted to alter the official Myanmar position or have not succeeded.

For the Thailand Cambodia issue in 2011 however it was Indonesian leadership with their Foreign Minister (FM) Marty Natalegawa using the nature of mechanisms set out in the TAC without invoking it. He went into mediation and conciliation without ascribing terms and sought to alleviate the tension. Despite shooting and deaths, he persuaded both parties at an informal ASEAN ministerial meeting (substituting for the High Council of TAC) to send up to 40 Indonesian observers to oversee the peace.²¹ Thailand ultimately declined. This was the best effort ever by an ASEAN Chair to try and mediate in a regional dispute.²² Cambodia took the matter back to the ICJ to clarify its 1962 ruling and won the case in November 2013.

In 2012 when the ASEAN FMs for the first time could not agree on a joint statement due to intransigence by the Cambodian Chair, in avoiding criticism of China over the SCS it was again left to Indonesia (through its FM Natalegawa) to shuttle between various capitals of ASEAN to finally get an agreed statement. In 2013 the intrusion into Sabah took place by Sulu irregulars. ASEAN action was lacking even though Brunei, who knew the genesis of the issue, was the Chair. In 2017 the Rohingya issue again challenged the ASEAN community, its respect for human rights versus the policy of non-interference. How do you build an ASEAN community without intervening in a friendly manner when things go wrong?²³

ASEAN needs to realise that the world it grew up in has altered and internal issues also need attention. The peoples ASEAN envisaged by the socio-cultural community, will have no meaning unless dispute settlement mechanisms are strengthened. This will happen if ASEAN introduces realism in its functional approach. ASEAN achievements have come from well calibrated “cooperative leadership and partnership in the region, and an unshakeable belief in the efficacy of diplomacy.”²⁴

Today Indonesia is showing leadership in dealing with the Rohingya issue²⁵ but not so much on the Sabah issue. ASEAN can play an informal background role than externalize all disputes to the UN. However, with more populist foreign policies in vogue the ASEAN cooperative spirit is no more as strong as it used to be. The ability to manage disputes is not being tested by invoking TAC or ASEAN chairs or individual members own efforts. There is an evident leadership deficit within ASEAN as it is preoccupied with Chinese aggressive intent, the creation of Quad and the Indo- Pacific. This threatens ASEAN centrality in real terms. Their unwillingness to manage their disputes will hasten the blurring of their centrality and their view of regional security

For ASEAN to succeed in its Community building it needs to adhere to not only its extant principles but also to the evolving ones. It needs to manage this community with conciliation and trust and find the ways to resolve dormant matters by dealing with them and not keep them hidden in cupboards from where they emerge when least expected. A regional security vision needs to be bult which is not only external to ASEAN but also looks within.

Endnotes

1. An interesting essay on the genealogy of the name Sabah is in Danny Wong Tze Ken,The Name of Sabah and the Sustaining of a New Identity in a New Nation 
   Archipel, 89, 2015, p 161-178 https://journals.openedition.org/archipel/495
2. Indonesia's planning minister announces capital city move, BBC 29 April 2019,https://www.bbc.com/news/world-asia-48093431
3. Francesca Regaldo, Malaysia's spat with Philippines over Sabah: Five things to know, Nikkei Asia, 29 September 2020,https://asia.nikkei.com/Politics/International-relations/Malaysia-s-spat-with-Philippines-over-Sabah-Five-things-to-know
4. HG Tregonning.The Philippine Claim to Sabah, The Malayan Branch of the Royal Asiatic Society. Jmbras volume 43 1970 http://www.mbras.org.my/file/KGTreg.pdf
5. Cession and Transfer of the Territory of North Borneo by His Highness,
   Sultan Mohammad Esmail Kiram, Sultan of Sulu, Acting with the
   Consent and Approval of the Ruma Bechara, in Council Assembled,
   to the Republic of the Philippines* 24 April 1962 Philippines Official Gazette https://www.officialgazette.gov.ph/1962/04/24/cession-and-transfer-of-the-territory-of-north-borneo-by-his-highness-sultan-mohammad-esmail-kiram-sultan-of-sulu-acting-with-the-consent-and-aprroval-of-the-ruma-bechara-in-council-assembled-to/
6. The Accord was to resolve issues over the wishes of people in North Borneo and Sarawak within the context of United Nations General Assembly Resolution 1541 (XV).
   https://web.archive.org/web/20111111232635/http://unyearbook.un.org/1963YUN/1963_P1_SEC1_CH3.pdf
7. Manila Accord UN Treaty Series VIII 1965 No. 8029. Philippines, Federation of Malaya and Indonesia: Manila Accord. Signed at Manila, on 31 July 1963 Manila Declaration. Signed at Manila, on 3 August 1963 Joint Statement. Signed at Manila, on 5 August 1963.https://treaties.un.org/doc/Publication/UNTS/Volume%20550/v550.pdf
8. Marcos Order: Destabilize, Take Sabah, Philippine Daily Enquirer, 2 April 2000, https://news.google.com/newspapers?nid=2479&dat=20000402&id=P1M1AAAAIBAJ&pg=2032,892348&hl=en
9. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)
   ICJ Press Release 17 December 2002 https://web.archive.org/web/20140409130015/http://www.icj-cij.org/presscom/index.php?pr=343&pt=1&p1=6&p2=1
10. Najiah Najib, Lahad Datu invasion: A painful memory of 2013, Astro Awani 30 December 2013,https://www.astroawani.com/berita-malaysia/lahad-datu-invasion-a-painful-memory-of-2013-27579
11. Richard Heydarian, Will the Philippines risk war with Malaysia over Sabah?
    Nikkei Asia 18 September 2020, https://asia.nikkei.com/Opinion/Will-the-Philippines-risk-war-with-Malaysia-over-Saba
12. Lucio Blanco Pitlo III, Why the Philippines’ Sabah claim against Malaysia isn’t a land grab, SCMP 18 September 2020,https://www.scmp.com/week-asia/opinion/article/3101954/why-philippines-sabah-claim-against-malaysia-isnt-land-grab
13. Vinod Anand, Two Years of PCA Judgement on South China Sea: An Analytical Perspective. VIF 2 August 2018, https://www.vifindia.org/2018/august/02/two-years-of-pca-judgement-on-south-china-sea
14. Richard Heydarian, Will the Philippines risk war with Malaysia over Sabah?
    Nikkei Asia 18 September 2020, https://asia.nikkei.com/Opinion/Will-the-Philippines-risk-war-with-Malaysia-over-Saba
15. Basilio Sepe and Hadi Azmi, Malaysia, Philippines Take Row over Sabah to the UN, Benar News 3 September 2020 https://www.benarnews.org/english/news/malaysian/Sabah-dispute-09032020141241.html
16. Simon Tay, Does Sabah merit ASEAN’s attention? SIIA 18 March 2014, http://www.siiaonline.org/does-sabah-merit-aseans-attention/
17. Imelda Deinla, ASEAN non-interference and the Sabah conflict, New Mandala, 22 March 2013 https://www.newmandala.org/asean-non-interference-and-the-sabah-conflict/
18. Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976, ASEAN,https://asean.org/treaty-amity-cooperation-southeast-asia-indonesia-24-february-1976/
19. TAC Article 2 ibid.
20. Gurjit Singh,Islam and its role in Indonesia’s foreign policy, ORF, 24 June 2020,https://www.orfonline.org/expert-speak/islam-role-indonesia-foreign-policy-68410/
21. Thailand and Cambodia to accept monitors for border row, BBC,22 February 2011,https://www.bbc.co.uk/news/world-asia-pacific-12534980
22. Indonesia's role in the Thai-Cambodia border dispute still unclear, DW,https://www.dw.com/en/indonesias-role-in-the-thai-cambodia-border-dispute-still-unclear/a-6483440
23. Kasit Piromya, ASEAN Must Do More to Help the Rohingyas, The Diplomat 9 March 2020,https://thediplomat.com/2020/03/asean-must-do-more-to-help-the-rohingyas/
24. Marty Natalegawa, Does ASEAN Matter? A View from Within. ISEAS Singapore 2018 p4
25. Gurjit Singh: Islam and its role in Indonesia’s foreign policy, ORF, 24 June 2020,https://www.orfonline.org/expert-speak/islam-role-indonesia-foreign-policy-68410

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