http://wiki.answers.com/Q/Why_are_the_islands_of_Sabah_and_Spratly_being_claimed_by_the_Philippines
It
is the thesis of the Philippine government that the contract of 1878
was a lease, and not a transfer of ownership or sovereignty.
Treacher, was present at the signing of the contract and as witness,
he characterized the contract as a lease and referred to the money
payment as annual rentals. Contrary to allegations, the Philippine
claim had been studied for years before 1962. While serving in the
Department of Foreign Affairs in 1946, Diosdado Macapagal, who later
became President of the Philippines, advocated the filing of the
claim. The official filing of the claim took place on June 22, 1962.
The claims are of sovereignty, jurisdiction, and proprietary
ownership to North Borneo. Philippines being successor-in- interest
of the Sultan of Sulu derived its legal and historical rights in
North Borneo. In the early part of the 1960’s it became an
imperative for the Philippines, aside from the strong historical and
legal rights that North Borneo is important to Philippine territory
and vital to its security. At this time (1960’s), communism in the
region was in its height and Philippines were anxious that Malaya
would succumb to the potent communist threat from mainland Southeast
Asia, creating a scenario in which a communist territory would be
immediately at the southern frontier of the Philippines. Philippine
anxiety on the communist threat has subsided, but another form of
menace developed. From the dynamics of the Muslim separatist movement
in the south, there evolved a more terrifying threat. The Sabah state
of present Malaysia harbored some of the kidnappers, Abu Sayyaf and
Al-Quedah, provoking international concern through widespread
violence, state wide terror and their vision of establishing
independent states. The British North Borneo Company based their
rights from the grant signed in January, 1878. In it, the sultan of
Sulu granted certain concessions and privileges to Baron de Overbeck,
an Austrian national who was at the time the Austrian Consul-General
at Hongkong, and Alfred Dent, a British national, in consideration of
an annual rent or tribute of 5,000 Malayan dollars. Dent later bought
out Overbeck, and transferred his rights to the British North Borneo
Company. The Company was granted a Royal Charter on November 1, 1881.
The Philippine government argues that Overdeck and Dent (the leasors)
did not acquire sovereignty or dominion over North Borneo. This is
because, according to international law, sovereignty can be ceded
only to sovereign entities (e.g. government to government agreement)
or to individuals acting for sovereign entities (agreement between
leaders of nations). Obviously, Overbeck and Dent were private
citizens of their respective countries who did not represent any
sovereign entities, but instead acted as mere businessmen who only
acquired grant of lease from the Sultan of Sulu. Hence, neither of
them did not, and could not, acquire sovereignty or dominion.3 The
above letter was written by the British Foreign Minister to explain
and respond to the Spanish protest regarding the grant of Royal
Charter to the British North Borneo Company. It was not the Spanish
crown who made the protest alone; the Dutch government also protested
in the same way. Again, Lord Granville maintained in his letter to
the Dutch that the British North Borneo Company was a mere
administrator, and that the “British Government assumed no
sovereign rights whatever in Borneo.”
The Philippine government, therefore, strongly argues that the transfer of rights, powers and interest by the British North Borneo Company to the British Crown is not possible. North Borneo Cession Order of 1946 took place just six days immediately after the Philippines was declared independent by the United States. In the International Law, a transferee (British Crown) cannot acquire more rights than the transferor (British North Borneo Company). In other words, how can the British Crown exercise sovereign rights in the form of protectorate in 1946, when the British North Borneo Company did not exercise nor assume sovereignty over North Borneo? In other words, how can the British North Borneo Company transfer sovereignty to the British Crown, which the company did not have in the first place?
It
has been said that President Manuel L. Quezon of the Commonwealth of
the Philippines (the transitional, semi-autonomous government of the
Philippines under American sovereignty which preceded the independent
republic) “had decided not to recognize the continued existence of
the Sultanate of Sulu, particularly in reference to North Borneo.”
The Philippine Department of Foreign Affairs was not able to find a
written record of this statement. This pronouncement was against the
Organic Law of the Philippine Commonwealth, since the power to give
and terminate recognition during the Commonwealth Philippines was
vested only in the Congress of the United States of America (being
the colonial power). Aside from the political technicality,
International Law dictates that any withdrawal or termination of
recognition does not imply the dissolution of the entity affected by
the withdrawal. The Philippine government believes that Dent, who was
granted a Royal Charter in the form of British North Borneo Company
by the British government, to which the British Crown derived its
claim of sovereignty, was not authorized to acquire sovereignty or
dominion. Evidence to this was the official correspondence of Lord
Earl Granville, British Foreign Minister at the time, in his letter
to the British Minister in Madrid dated January 7, 1882, explaining
the character of the Charter Grant of the British North Borneo
Company, as follows: “The British Charter therefore differs
essentially from the previous Charters granted by the Crown to the
East India company, the Hudson’s Bay Company, the New Zealand
Company, and other Associations of that character, in the fact that
the Crown in the present case assumes no dominion or sovereignty over
the territories occupied by the company, nor does it purport to grant
to the Company any powers of government thereover; it merely confer
upon the persons associated the status and incidents of a body
corporate, and recognizes the grants of territory and the powers of
government made and delegated by the sultan in whom the sovereignty
remains vested…As regards the general feature of the undertaking,
it is to be observed that the territories granted to the Company have
been for generations under the government of the Sultan of Sulu and
Brunei, with whom Great Britain has had Treaties of Peace and
Commerce…
The
above letter was done by the British Foreign Minister to explain and
respond to the Spanish protest regarding the grant of Royal Charter
to the British North Borneo Company. It was not the Spanish crown who
made the protest alone; also the Dutch government protested the same.
Again Lord Granville maintains, in his letter to the Dutch, that the
British North Borneo Company was a mere administrator, and that
“British Government assumed no sovereign rights whatever in
Borneo.” The Philippine government therefore, strongly argues that
the transfer of rights, powers, and interest by the British North
Borneo Company to the British Crown is not possible, known as North
Borneo Cession Order of 1946 (that took place six days immediately
after the Philippines was declared independent by the United States).
In the International Law, a transferee (British Crown) can not
acquire more rights than the transferor (British North Borneo
Company). In other words, how can the British Crown acquire sovereign
rights (in the form of protectorate in 1946), when the British North
Borneo Company did not exercise nor assume sovereignty over North
Borneo? Again, since Overbeck and Dent did not acquire rights of
sovereignty or dominion over North Borneo their transferee (British
North Borneo Company), also, did not acquire rights of sovereignty or
dominion. The1930 Convention Between the United States and Great
Britain and its implication to the Philippine Sabah Claim.
Under
the Carpenter Agreement of 1915, the Sultan of Sulu agreed to
relinquish its temporal power over Sulu, but retained his sovereignty
over North Borneo. As Governor Carpenter clarified in this
communication to the director of the Non-Christian tribe on May 4,
1920, as follows: “It is necessary however that there be clearly
(sic) of official record the fact that the termination of the
temporal sovereignty of the Sultanate of Sulu within American
territory is understood to be wholly without prejudice or effect as
to the temporal sovereignty and ecclesiastical authority of the
sultanate beyond the territorial jurisdiction of the United States
Government especially with reference to that portion of the Island of
Borneo which as a dependency of the Sultanate of Sulu is understood
to be held under lease by the chartered company which is known as the
British North Borneo Company… ” The American Governor General of
the Philippine Island Francis B. Harrison made it more clear that:
“It is true Governor Carpenter’s contract or treaty with the
Sultan of Sulu of 1915 deprived the Sultan of his temporal
sovereignty in the Philippine archipelago but did not interfere with
the Sultan’s status of sovereignty over British North Borneo
lands.” It is in the context of this statement that the 1930
Convention between the United States and Great Britain defined their
respective boundaries. The United States did not intend to claim
North Borneo. By this act of defining their respective boundaries,
the United States did not cede or waive anything to the British
Crown. Macaskie Dictum of 1939. In 1939, the heirs of Sultan Jamalul
Kiram filed a suit case in the court of Borneo for the purpose of
collecting the money due to them under the 1878 Grant. The issue
before the court was the identity of the heirs of the sultan who were
entitled to receive payments after his death. Through their attorney,
they had the only English translation by Maxwell and Gibson (that
translated the Grant of 1878 as cessation instead of lease, which is
wrong according to a later translation). It should be recalled, that
the Grant in 1878 is in Arabic and is worded in the Malayan language.
At the time the lawyer of the heirs filed the case, he had no
original copy of the Grant in 1878. The erroneous Maxwell-Gibson
translation was the one used, quoted, and paraphrased in the
complaint filed by the attorney for the heirs of the Sultan. Years
after the Macaskie dictum was made (which translated the Grant as
cession instead of lease), the Philippine government had the copy
translated into English. According to the result of the translation,
the Grant of 1878 was a Lease Agreement. Under this circumstance, the
Philippine Government could not accept the dictum of Judge Macaskie.
In the judgment, the Grant of 1878 was viewed as a permanent cession
or sale, and that the money that is to be paid to the heirs is
“cession money.” Recognition of the Sultan of Sulu of the
Sovereignty of Spain over “Sulu and its dependencies” (the main
island of Sulu and the tributaries) in 1878 and the eventual
renunciation in 1885.
According
to this interpretation, Spain acquired sovereignty over North Borneo
in 1878 when it signed the protocol of March 7, 1885 with Germany and
Great Britain. In that protocol of peace, Spain gave up all claims of
sovereignty over North Borneo to Great Britain; hence, sovereignty
over the territory was transferred to Great Britain. The document
signed by the sultan in 1878, recognizing Spanish sovereignty over
“Jolo and its dependencies,” had no mention on the inclusion of
the sultan’s territory in North Borneo. It is important to first
clarify that Spain never acquired sovereignty over North Borneo. In
the protocol signed, the term “pretension” to sovereignty over
North Borneo was used; hence, there was no essence at all that Spain
was transferring sovereignty to Great Britain (a sovereignty Spain
never had; it was merely a pretension). Second, “Jolo and its
dependencies” was a geo-political unit different and distinct from
the North Borneo possession. To give a more vivid example for this
argument, let us try to examine Spanish geo-political units in its
Asian positions, known as “Espana Oceanica:” 1. The Philippine
Archipelago proper; 2. The Island and archipelago of Jolo,
conformably with existing treaties with the Sultan of Sulu; 3. The
portion of Northeast cost of Borneo that forms part of the dominion
of the Sultan; 4. The Marianas Islands; and 5. Other territories
which now belong or which may belong in the future to Spain. North
Borneo was not considered a dependency of Jolo. As shown in the list
of “Espana Oceanica,” North Borneo was a geo-political unit
different and distinct from the Archipelago of Jolo. It is clear that
the sultan did not include his territory and dominion in North Borneo
in signing the treaty recognizing the Spanish sovereignty. Another
thing to consider was the Spanish Geo-political division in “Espana
Oceanica.” In the Spanish geo-political law, the regulations were
clear about that. Even if one would insist to assume that the signing
of the sultan in 1885 recognizing Spanish sovereignty over “Jolo
and its dependencies” resulted to transfer of sovereignty is still
out of premise. Because in the protocol of peace in between Germany,
Great Britain, and Spain, it was clearly stated that the Spanish
claim of sovereignty was worded in the text as “pretension.” By
this, it did not result in transfer of sovereignty from Spain to
Great Britain. Therefore, the premise that Spain’s renunciation of
sovereignty over its North Borneo territory in favor of Great
Britain, that resulted in transfer of sovereignty from the Sulu
Sultanate to Great Britain, was impossible.
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