INTERNATIONAL law does not recognise the use of history to advance one's claims. Period.
If history can be used as precedent, the whole of the South China Sea, which China is claiming based on sheer historical right, would have been an open and shut case.
But the government of the Philippines successfully argued in 2016 at the United Nations International Tribunal On the Laws of the Seas that "history" cannot form the basis of China's claim.
Indeed, with a "living" civilisation traversing 5,000 years, so the Chinese often like to claim, augmented further by the scholar Zhang Wei Wei referring to China as a "civilisational state", there isn't a single part of Asia, for that matter Africa, even the entire arch that forms the Silk Road, that is untouched by Chinese "history".
Even the computer bears the imprint of the famous Chinese Abacus.
By this token, one of the most outrageous arguments of the "historical claims", of the clan of Sultan Kiram, whom some believe has sub divided into eight of 16 different clans, is that the Malaysian government is legally obliged to pay the whole Kiram clan a total of US$15 billion.
Failing which a compound interest rate of 10 per cent would be added to the above amount each year. This is akin to the court acting as a loan shark. That the adversarial French legal system can stoop so low is, for the lack of a better word, abysmal.
What is most unique is the nature of the Kiram "family" (first) legal salvo. Rather than reclaiming Sabah, it took aim at the most valuable asset of Malaysia: Petronas. If the legal claim is built on ownership of the Kiram family on and of Sabah, shouldn't the case revolve entirely and wholly on the state ?
Yet, it wasn't. The Kiram family does not want the onerous responsibility of taking back one of the poorest states of the Federation of Malaysia.
Goaded and shepherded by its money-grabbing legal sherpa — Therium Incorporated in London — the Kiram family was coached and, perhaps, coerced, into cherry picking the law.
Thus, Petronas became its target. Should this act of helping the enemy of Sabah come from within the state, the laws of treason should apply for aiding and abetting an enemy to conduct what can only be called "lawfare" against Malaysia.
The national oil and gas entity is responsible for up to 11 per cent of the revenue of the Malaysian government.
Should all the operations of Petronas be crippled, it is not a tall stretch to wonder that there are certain higher colonial forces that are fanning the embers to start a fire that would burn Malaysia to a crisp.
By this token, all parties must be careful of the foreign machinations that are working in cahoots in some elements of Sabah to either reap a financial payout, or to seek a price that Petronas is asked to agree to. Either way, the enemies within and without have won a handsome windfall.
There are at least three reasons why Malaysia needs to fight this legal farce that verges neo-colonial conspiracy of the worst kind.
First, who is the true inheritor of the Kiram family? If it is a royal family, with a single line of succession, perhaps the family may ostensibly have some locus standi to press the claims of US$15 billion against Petronas.
But, if the Kiram family has many offshoots and no clear family tree, other then sharing the name Kiram, of which some, if not a majority of them, may have decided to remain in Sulu to ply a normal life, content with or without any accountrements of the slightest luxuries, or, alternatively, become naturalised Sabahans, then what rights do they possess over anything that is extracted from the state? None.
Second, regardless of which is which, the Kiram family is not a united and cohesive entity. That is the key point. Whether Malaysia kept paying an annual lease of RM5,800 from 1878 until 2013 is not tantamount to acknowledging their sovereignty.
Each year, Malaysia pays a membership of US$2 million to the Asean Secretariat in Jakarta too, as do the rest of the nine member states of Asean. Does that mean Malaysia can intervene in the affairs of Singapore just because the 10 member states have pledged to be a single Asean community by 2025. Again, the answer is in the negative.
Third, the fact that they needed 144 years to bankroll their claim against Petronas, backed by a legal vulture named Therium, can only suggest one thing: that the Kiram family was merely taking a wild jab in the dark based on sheer legal sophistry. Not facts.
For the lack of a better word, this was a case of the right hand not knowing what the left hand was doing. Little wonder then that when the verdict in favour of the Kiram family was announced by the French arbitration court, an immediate stay of judgment was granted to Petronas the following day.
While the New York Convention on Arbitration forms part of international law, where it does allow the case that was originally heard, then spurned in Spain, to be heard in the arbitration chamber of France, the US$64 million dollar question is this:
Granted that the issue in contention was the 1878 lease granted by Sultan Kiram to the North Borneo British Company, why didn't Therium, that is backing the Kiram family claim, file the legal claim in London?
Were they afraid that the statute of limitations on the lease has long expired?
Granted that the Philippines is a republic, ruled by a president, with various theoretical divisions of power, it boggles the mind how a presidential and congressional system, with southern Mindanao granted autonomy, can provide the legal status to the Kiram family in Sulu, when the whole of Mindanao is what the Philippines has sought to claim since the 16th century.
For what is worth, the legal eagles in Petronas should not be resting on their laurels. The same applies to the Attorney General's Chambers.
For that matter, the Research Department and the Special Branch. Truly, someone is trying to stir the proverbial pot in Sabah. Whatever their sinister goal is, Malaysia must take up this case seriously with the right legal competencies to protect and preserve its sovereign territories and rights.
Thus, all these agencies, especially the government and opposition alike, be they at the federal or state level, should be closely watching how the Kiram family has been manipulated to enlarge its global arbitrate claims.
The key of their strategy seems to be to cut Petronas to size before the crown jewel of Malaysia can launch any counter attack.
Sometimes defence is not necessarily the best offence, especially when the opposite side is supported by a spurious and amorphous entity.
The writer is the president and CEO of EMIR Research.
