Zaid Ibrahim said the “effectivités” principle relied on by the International Court of Justice in the dispute between Malaysia and Singapore over Batu Puteh may affect Sarawak’s claim to resources found on the continental shelf adjacent to its coast.
“The term ‘effectivités’ refers to the actual exercise of authority, usually in the form of administration or control over a territory, as opposed to merely making a legal claim to it.
“It considers whether or not a state has exercised an actual, continuous and peaceful display of state functions over a territory,” he said.
Zaid said the principle is often used in sovereignty disputes involving ambiguous or contested titles
He said the ICJ judgment acknowledged that Batu Puteh historically belonged to the Johor sultanate.
“However, Singapore performed various acts on the island, including by installing the Horsburgh Lighthouse in 1851, and by actively managing and conducting naval patrols of the area ever since.
“Malaysia, for its part, neither protested nor took any action to assert its own sovereignty over the island. The ICJ took this to mean that Malaysia had impliedly acquiesced to Singapore’s sovereignty,” he told FMT.
Zaid said a court may similarly construe various actions taken by Sarawak as amounting to actual consent, or at the very least implied acquiescence, to Petronas assuming ownership and control of all O&G resources both on and offshore.
“Sarawak did not dispute the legality of the Continental Shelf Act 1966 or the PDA for a long period of time. Also, Rahman Ya’kub, Sarawak’s then chief minister, is said to have been heavily involved in negotiations that led to the passing of the Petroleum Development Act 1974 (PDA).
“Likewise, MPs from the state would have participated in parliamentary deliberations and even voted to pass the bill into law,” he said.
He also pointed out that Sarawak signed a royalty agreement and has enjoyed payment under it for 50 years.
“These are matters which are likely to be considered if there is a court challenge.
“Sarawak may be estopped from denying the validity of legislation passed and the position of its boundaries,” said Zaid, a lawyer of more than 45 years and a former managing partner of Malaysia’s largest law firm.
Zaid, a veteran politician and an ardent advocate of social and constitutional issues, said the dispute between Putrajaya and Sarawak could properly be described as one within the realm of public international law.
“This is the position taken in the Commonwealth of Australia, which also has a federalised system of government,” he said.
Sarawak has recently laid claim to all O&G resources on the continental shelf off its coast, tracing its right to a colonial order issued by Queen Elizabeth II in 1954.
The state claims the Sarawak (Alteration of Boundaries) Order in Council 1954 extends its boundaries by 200 nautical miles to cover the seabed and the subsoil lying beneath the high seas contiguous to the state’s territorial waters.
The Sarawak government also wants state-owned oil company Petroleum Sarawak (Petros) to take over from Petronas as the state’s gas aggregator.
On Sunday, Sarawak premier Abang Johari Openg said he was ready to go to court if any party disrespects Petros’s rights to be the sole gas aggregator in the state.
Former prime minister Dr Mahathir Mohamad and former finance minister Tengku Razaleigh Hamzah have disputed Sarawak’s claims, saying that the right to all energy resources on and offshore belongs to Petronas under the PDA.
Petronas and Sarawak are presently locked in talks over a resolution to the dispute.