652

SEPARATE OPINION OF JUDGE FRANCK

Intervention under Article 62 of the Statute of the International Court of Jus-
tice — Interest of a legal nature which may be affected by the decision in the
case — Scope of Court’s role in determining the “legal nature” of the interest
advanced by the Applicant — Whether Philippine claim of historic title over
North Borneo amounts to a “legal” interest — Impact of self-determination of
the people of North Borneo on historic title.

1. I wholly support the Judgment of the Court and entirely agree with
its disposition of the legal issues considered by it.

2. At the same time, I wish to explicate a legal basis for the Court’s
decision which, while consistent with it, has not been advanced by the
Court, perhaps because it was insufficiently advanced by the Parties,
although discussed in passing by Malaysia (CR 2001/2, p. 56, para. 10
(Lauterpacht)) and the Philippines (CR 2001/3, p. 23, para. 14 (Maga-
llona)). I shall endeavour to demonstrate why that legal basis is of some
importance and why the Court need not have been deterred from making
this clear. The point of law is quite simple, but ultimately basic to the
international rule of law. It is this: historic title, no matter how persua-
sively claimed on the basis of old legal instruments and exercises of
authority, cannot — except in the most extraordinary circumstances —
prevail in law over the rights of non-self-governing people to claim inde-
pendence and establish their sovereignty through the exercise of bona fide
self-determination.

1. THe NATURE OF THE “LEGAL INTEREST” CLAIMED
BY THE PHILIPPINES

3. In the present case, the Application for permission to intervene
admits to having no interest in the precise subject-matter of the case
(CR 2001/1, p. 17, para. 2 (Reisman); p. 27, para. 28 (Reisman); see also
Diplomatic Note from the Government of the Philippines to the Govern-
ment of Malaysia dated 5 April 2001, Written Observations of Indonesia,
para. 13), which comes before this Court as a territorial dispute over
two islands, the ownership of which is contested by Indonesia and
Malaysia (Special Agreement jointly notified to the Court by Indonesia
and Malaysia on 2 November 1998). The basis of the Philippine interven-
tion, in sharp contrast, is its claim to historic sovereignty over much of
North Borneo. The Philippines has sometimes characterized this as a ter-

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ritorial claim (CR 2001/3, pp. 23-24, para. 14 (Magallona)) but, in
fact, throughout the pleadings it is clear that what the Philippines
seeks to protect by intervention is its claim that the sovereign title of the
Sultan of Sulu has become the sovereign title of the Philippines (see, for
example, CR 2001/1, p. 37, para. 15 (Magallona); CR 2001/3, pp. 25-26,
paras. 17-20 (Magallona)). What the Philippines seeks to preserve is not
simply its rights in a territorial dispute with Malaysia about a mutual
boundary, but its sovereign title to most of what is now a federated
Malaysian state. The Philippines states in its Application for permission
to intervene that

“[t]he interest of the Republic of the Philippines is solely and exclu-
sively addressed to the treaties, agreements and other evidence fur-
nished by Parties and appreciated by the Court which have a direct
or indirect bearing on the matter of the legal status of North Bor-
neo” (para. 4 (a); emphasis added).

The object of the requested intervention is said to be

“to preserve and safeguard the historical and legal rights of the Gov-
ernment of the Republic of the Philippines arising from its claim to
dominion and sovereignty over the territory of North Borneo” (ibid.,
para. 5 (a)).

4. In essence, the Philippine claim is to North Borneo (CR 2001/1,
pp. 33-35, paras. 5-9 (Magallona); see also Philippine Claim to North
Borneo, Vol. 1, 1963, Preface by Emmanuel Pelaez, Vice-President and
concurrently Secretary of Foreign Affairs, and pp. 5-38 by President
Diosdado Macapagel) and not to bits of it. This is not a boundary dis-
pute to which evidence of historic title and evidence of texts and efficacies
might well be relevant. This is, in effect, a claim by the Philippines to
one of the federated states of Malaysia. It is in essence a claim to a terri-
tory that had been administered as a British dependency, an interest in
reversing that territory’s decolonization almost 40 years ago.

2. Court’s ROLE IN DETERMINING THE PHILIPPINE APPLICATION
FOR INTERVENTION

5. The role of the Court is therefore to determine whether the Philip-
pines claim of title to territories in North Borneo amounts, under inter-
national law, to a “legal interest” which justifies its intervention in the
main action.

6. What interest does the Philippines advance? It wishes to ensure that
this Court is aware of, and duly respects, its interest in sovereignty over

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most of North Borneo. In exercising its discretion, the Court must con-
sider, and has considered, whether that interest is sufficient and has been
demonstrated. But the Court may also consider whether the interest is
one which, even if it had been found both weighty and amply demon-
strated, is also an interest that is barred by international law.

7. In making that determination, the Court is not confined to the
Parties’ submissions. Under Article 62, paragraph 2, of the Statute of the
Court, it is for the Court itself to decide whether the applicant-intervener
possesses a “legal interest” in the main action to be decided by the Court
(Continental Shelf (TunisialLibyan Arab Jamahiriya), Application for
Permission to Intervene, Judgment, LC.J. Reports 1981, p. 12, para. 17).
That the applicant-intervener has the right and obligation to demonstrate
such legal interest does not end the matter. It remains for the Court to
satisfy itself that international law does not bar the very interest that the
Philippines seeks to have protected.

8. In this regard, it does not matter whether the Parties themselves
have fully argued the legality of the interest the Applicant seeks to pro-
tect. It is important to draw a distinction between (i) cases in which the
Court proceeds to decide issues not raised in the parties’ submissions
(which would likely be precluded by the non ultra petita rule), and
(ii) those cases in which, precisely in order to deal correctly with an issue
which has been referred to it, the Court must take into account consid-
erations of fact or of law other than those relied upon by the parties (Fitz-
maurice, The Law and Procedure of the International Court of Justice,
1986, p. 531). The present case falls into category (ii). It is essential — in
determining whether the Philippines has a legal interest in protecting its
claim of historic sovereignty over most of North Borneo — that the
Court take into account all the relevant international law, including the
modern law of decolonization and self-determination. The mere fact that
this law was but passingly raised by the Parties does not preclude Mem-
bers of the Court taking judicial notice of the impact of so vital a legal
principle, one that profoundly bears on the Applicant’s claim to possess
a “legal interest”. As was stated by the Court in the Fisheries Jurisdiction
case:

“The Court ... as an international judicial organ, is deemed to
take judicial notice of international law, and is therefore required in
a case falling under Article 53 of the Statute, as in any other case, to
consider on its own initiative all rules of international law which
may be relevant to the settlement of the dispute. It being the duty of
the Court itself to ascertain and apply the relevant law in the given
circumstances of the case, the burden of establishing or proving rules
of international law cannot be imposed upon any of the parties, for

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the law lies within the judicial knowledge of the Court.” (LCJ.
Reports 1974, p. 9, para. 17.)

While this statement was made in the context of applying Article 53, the
principle is equally applicable when giving effect to Article 62.

3. THE IMPACT OF SELF-DETERMINATION ON Historic TITLE

9. Under traditional international law, the right to territory was vested
exclusively in rulers of States. Lands were the property of a sovereign to be
defended or conveyed in accordance with the laws relevant to the recog-
nition, exercise and transfer of sovereign domain. In order to judicially
determine a claim to territorial title erga omnes, it was necessary to
engage with the forms of international conveyancing, tracing historic title
through to a critical date or dates to determine which State exercised ter-
ritorial sovereignty at that point in time. Under modern international
law, however, the enquiry must necessarily be broader, particularly in the
context of decolonization. In particular, the infusion of the concept of the
rights of a “people” into this traditional legal scheme, notably the right of
peoples to self-determination, fundamentally alters the significance of
historic title to the determination of sovereign title.

10. Previous judgments of this Court (in particular, its Advisory Opin-
ion of 26 January 1971 on the Legal Consequences for States of the Con-
tinued Presence of South Africa in Namibia (South West Africa) not-
withstanding Security Council Resolution 276 (1970), LC.J. Reports
1971, pp. 31-32, paras. 52-53, and its Advisory Opinion of 16 Octo-
ber 1975 in Western Sahara, .C.J. Reports 1975, pp. 31-33, paras. 54-59)
contribute to and recognize the development of the right of non-self-gov-
erning peoples to self-determination which “requires a free and genuine
expression of the will of the peoples concerned” (Western Sahara, ibid.,
p. 32, para. 55). The Court recognized in the Namibia case that, “the sub-
sequent development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all of them” (1 C.J. Reports
1971, p. 31, para. 52). In the case concerning East Timor ( Portugal v.
Australia), the Court recognized the principle of self-determination to be
“one of the essential principles of contemporary international law” (4. C.J.
Reports 1995, p. 102, para. 29).

11. The decisions of this Court confirm the prime importance of this
principle of self-determination of peoples. The firm basis for the principle
is also anchored in universal treaty law, State practice and opinio juris.
Article |, paragraph 2, of the United Nations Charter indicates that one
of the purposes of the United Nations is “{tlo develop friendly relations
among nations based on respect for the principle of equal rights and self-
determination of peoples”. The principle also finds express and implied

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reflection in other provisions of the Charter, namely Article 55, Article 73
and Article 76 (b). Common Article 1 of the International Covenant on
Civil and Political Rights and the International Covenant on Economic
Social and Cultural Rights provides that “[a]ll peoples have the right of
self-determination”, and emphasizes in Article | (3) that “States Parties
to the present Covenant . . . shall respect [the] right [of self-
determination], in conformity with the provisions of the Charter of the
United Nations”.

12. This treaty law has been affirmed, developed and given more
tangible form by numerous resolutions of the General Assembly, which
have consistently received broad support. General Assembly resolu-
tion 637 (VII), adopted on 16 December 1952, was an early recognition
that “every Member of the United Nations, in conformity with the Char-
ter, should respect the maintenance of the right of self-determination”, a
right which was stated to be a “prerequisite to the full enjoyment of all
fundamental human rights”. The “Declaration on the Granting of Inde-
pendence to Colonial Countries and Peoples”, General Assembly resolu-
tion 1514 (XV), adopted without dissent on 14 December 1960, is regarded
as fundamental to the process of decolonization. It is applicable to all
“territories which have not yet attained independence” and establishes
that “[a]ll peoples have the right to self-determination” while insisting
that “[aJny attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations”. In Gen-
eral Assembly resolution 1541 (XV), adopted with only two dissents on
15 December 1960, the General Assembly contemplated more than one
method of self-determination for non-self-governing territories, including
“[integration with an independent State”. General Assembly resolu-
tion 2131 (XX), “Declaration on the Inadmissibility of Intervention in
the Domestic Affairs of States and the Protection of Their Independence
and Sovereignty”, adopted by 109 countries without dissent on 21 Decem-
ber 1965, declared that, “[a]ll States shall respect the right of self-deter-
mination and independence of peoples and nations, to be freely exercised
without any foreign pressure, and with absolute respect for human rights
and fundamental freedoms”. The principle of self-determination was
further included among the “basic principles of international law” set out
in the “Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations”, adopted by consensus as the Annex
to resolution 2625 (XXV) on 24 October 1970. According to this docu-
ment, “all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social
and cultural development, and every State has the duty to respect this
right in accordance with the provisions of the Charter” (emphasis added).

13. The independence of North Borneo was brought about as the

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result of the expressed wish of the majority of the people of the territory
in a 1963 election. The Secretary-General of the United Nations was
entrusted under the Manila Accord of 31 July 1963 with the task of ascer-
taining the wishes of the people of North Borneo, and reported that the
majority of the peoples of North Borneo had given serious and thought-
ful consideration to their future and:

“[had] concluded that they wish to bring their dependent status to an
end and to realize their independence through freely chosen associa-
tion with other peoples in their region with whom they feel ties of
ethnic association, heritage, language, religion, culture, economic
relationship, and ideals and objectives” (quoted by the Representa-
tive of Malaysia to the General Assembly, 1219th meeting, 27 Sep-
tember 1963, Official Records of the General Assembly, Eighteenth
Session, UN doc. No. A/PV.1219).

14. In 1963, Britain filed its last report to the United Nations on North
Borneo as an Article 73 (e) Non-Self-Governing Territory (Note by the
Secretary-General, Political and Constitutional Information on Asian
Territories under United Kingdom Administration, UN doc. No. A/5402/
Add.4 (4 April 1963)). Thereafter, the United Nations removed North
Borneo from the list of colonial territories under its decolonization juris-
diction (see Yearbook of the United Nations, 1964, pp. 411-435, which
omits North Borneo from the Committee’s list of territories), thereby
accepting that the process of decolonization had been completed by a
valid exercise of self-determination.

15. Accordingly, in light of the clear exercise by the people of North
Borneo of their right to self-determination, it cannot matter whether this
Court, in any interpretation it might give to any historic instrument or
efficacy, sustains or not the Philippines claim to historic title. Modern
international law does not recognize the survival of a right of sovereignty
based solely on historic title; not, in any event, after an exercise of self-
determination conducted in accordance with the requisites of interna-
tional law, the bona fides of which has received international recognition
by the political organs of the United Nations. Against this, historic
claims and feudal pre-colonial tities are mere relics of another interna-
tional legal era, one that ended with the setting of the sun on the age of
colonial imperium.

16. The lands and people claimed by the Philippines formerly consti-
tuted most of an integral British dependency. In accordance with the law
pertaining to decolonization, its population exercised their right of self-
determination. What remains is no mere boundary dispute. It is an
attempt to keep alive a right to reverse the free and fair decision taken
almost 40 years ago by the people of North Borneo in the exercise of

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their legal right to self-determination. The Court cannot be a witting
party to that.

17. In so far as the Philippines has claimed a legal interest in protect-
ing its claim to sovereign title on the basis of the historic rights of the
Sultan of Sulu, that legal interest, however fascinating historically, has no
modern purchase. It is, beyond reasonable disputation, barred by a legal
principle firmly established in modern texts, judicial decisions and State
practice. There is no point, therefore, in encouraging its further ventila-
tion. As the Court said in the case concerning the Northern Cameroons:

“The Court must discharge the duty to .. . safeguard the judicial
function . . . [Where] adjudication [is] . . . devoid of purpose, .. . for
the Court to proceed further in the case would not . .. be a proper
discharge of its duties.

The answer to the question whether the judicial function is engaged
may, in certain cases where the issue is raised, need to wait upon an
examination of the merits. In the present case, however, it is already
evident that it cannot be engaged.” (Preliminary Objections, Judg-
ment, 1. C.J. Reports 1963, p. 38.)

4. CONCLUSION

18. To allow the Philippines to proceed to intervene in the merits
phase of this case, when the legal interest it claims would have no chance
of succeeding by operation of law, cannot discharge the Court’s duties.
Even if the probity of all the Applicant’s evidence were to be wholly con-
firmed, its interest would still be solely political: perhaps susceptible of
historic, perhaps of political, but in any event not of judicial, vindication.

19. For this and for all the other reasons stated in the Court’s Judg-
ment, I concur in the decision of the Court.

(Signed) Thomas FRANCK.

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