Historical and legal records attests to the fact that the Sultanate of Sulu as well as the Philippine government have the legal and historical ascendancy over the indifference and unwarranted show of force by the Malaysian government. From a peaceful visitation and visibility, it is time that the claim to Sabah be presented to an international body/ies for mediation, arbitration or judgment. It is about time that the injustice be put into the proper perspective, to let justice be served after a long hibernation.
After a long hiatus in what it considers a lack of government initiative and support from past as well as the present administrations on its advocacy in Sabah plus the continued ignoring of Malaysia to this day of the rights to possessed the ownership over Sabah by the Sultanate of Sulu Kingdom, creates a resolve on the part of the Sultanate (now in the twilight years of his life) and his people to do something to gain national and international attention to his claim on Sabah which was denied from him through various wrongful official acts by Dent and Overbeck of the British North Borneo Company, Britain, Malaysia, and the Federation of Malaysia in the past, and the most recent is the attacks on the security forces of the Sultanate and prohibiting them to live in their own land and even expulsing the people of the Sultanate living in Sabah today.
Even the media, wrongfully and speculatively paint the visitation act to his property as an invasion, but now it has been realized that the attacks on the sultanate’s forces are unwarranted and unjustifiable.
Background
Why did the United Kingdom so easily cede its sovereignty over Sabah to Malaysia in 1963 despite knowing that its rights over the territory arose merely from the lease granted by the Sultan of Sulu to the British North Borneo Company? Why did it ignore the Philippine claim and voluntarily relinquish its sovereignty over Sabah to the new emerging state of Malaysia?1
What is the legal basis of sabah claim by the sultanate of sulu?
Malaysia was formed and given independence by the British Government in 1963. The Sultanate of Sulu and North Borneo was also given by the British Government the 'Letter of Administration to Sabah, acknowledging all the property of the Sultanate of Sulu over Sabah in 1939. To the effect that 1939 is earlier than 1963 explicitly telling us which one is genuine and legal.
Another striking solid and legal evidence of the Sabah ownership is the case filed by Indonesia to the United Nations to claim part of Sipadan,Sabah against Malaysia . The UN ruling under ICJ explicitly stated that Indonesia has no sovereign rights over Sipadan, Sabah because it is owned by the Sultanate of Sulu under administration of Malaysia.
Therefore, if Malaysia will not acknowledge the ownership by the Sultanate of Sulu over Sabah, Malaysia is directly violating ( for in fact being violated for 47 years) the UN sanctions over Sipadan, Sabah stating that the Sultanate of Sulu is the legitimate owner of Sabah.
Moreover , if Malaysia will not acknowledge the 1939 High Court decision and the implementation of the 'Letter of Administration over Sabah that the Sultanate of Sulu is the owner of Sabah , Malaysia has to nullify their Independence given by the British Government in 1963 ,simply because it is the same government , the British Government who gave authority over the ownership of Sabah which is far earlier than their independence in 1963. It cannot close its eyes and must return Sabah to its rightful owner. 2
I see no justifiable defense on the part of the Malaysia to dodge the issue but to face it squarely in the proper international tribunal.
Malaysian claim
The Malaysian claim is based on the argument that the original document was a treaty of cession. Malaysia traces its claim to the 1878 Deed signed by the Sulu sultans in favor of the adventurers Overbeck and Dent, members of a syndicate, which was eventually organized into BNBC (British North Borneo Company). It is claimed that the two adventurers entered into the 1878 Deed as representatives of BNBC and thus attained sovereignty over Sabah. In international law, if you begin with nothing, you end with nothing. The two Europeans never acquired sovereignty over Sabah and had no power to transfer that sovereignty to BNBC, to the British Crown or to Malaysia, which is merely a successor-in-interest to Britain.
In June 1946, the British Crown and BNBC entered into an agreement, which appears to cede and transfer all the rights, powers and interests of BNBC on North Borneo to the British Crown.
Since the Malaysian claim ultimately depends upon this deed, then the claim is questionable on two grounds.
First, since the deed is written in Arabic, it is a question whether the intent was to engage in a deed of lease or in a deed of cession (which Malaysia asserts). Second, under international law, British nationals could not assume state sovereignty; they had no legal status to accept a deed of cession of territory. 3
If we take the intent into consideration it is overwhelmingly lease as the British North Borneo Company is not qualified to enter into a cession treaty with the Sulu Sultanate, but only lease.
It is not even proper to interpret the deed as cession instead of lease. The intent is already self-serving. There is no such thing as cession for life but only long-term lease.
Principle of lease of territory
Under international law, a lease of territory is an agreement by which a subject, ordinarily a state, grants another subject of international law, a trading company, the right to use and exercise control over part of the former’s territory. Once territory is leased, sovereignty over it remains with the lessor and is divorced from jurisdiction, which is granted to the lessee. Lease of territory is usually granted in return for an annual fee.
Wrongful acts committed with respect to a leased territory follow the general rules of attribution. Since Malaysia apparently has committed wrongful acts, which have resulted in the deaths of Filipinos in Sabah, Malaysia has assumed state responsibility. Under international law today, the focus is on the human rights obligations of Malaysia toward the Filipino individuals and population associated with Sabah.4
Argument for the Sultanate
Sabah was illegally taken from the Sultan of Sulu and the Philippines.
Overbeck and Dent did not informed the Sultanate of Sulu that they have ceded Sabah to the British. A private company have no sovereignty or the rights to cede a territory and as an insult to the Sulu Sultanate, a territory which they have no ownership. One cannot give what he does not own. On the part of the British, they should not have accepted without establishing the legality of their acceptance. It is like accepting a hot item, a stolen good. In my opinion because it is hot, the British had to dispose of Sabah to the Malaysian Federation, confounding their violations. Malaysia accepted and become an accomplice in the violations against the Sulu Sultanate.
Historical Justifications for Territorial Claims
During the past forty years, territorial claims against neighboring states have almost always been justified as attempts to recover land that had been "wrongfully" taken away. This article charts the rise of this kind of historical argument, beginning- with the Peace of' Westphalia. It is an argument hat has its roots in Western understanding of property rights.5
Historical arguments have come into ascendancy as claims based strictly on ethnic, strategic, and economic considerations have become less acceptable.
The contemporary discourse of territorial claim justification reflects the recent ascendancy of the principle that a state is not entitled to seize territory from another unless that territory itself was originally wrongfully seized. So widely accepted is this principle that since the close of World War 11, few state leaders have been willing to deny its validity. What this means is that the justifications now offered in support of territorial claims are almost invariably couched in terms of recovery of territory that historically belonged to the claiming state. The disputed territory is rightfully "ours," the argument goes: it was illegally taken away from "us" and "we" have the right to reclaim it.
The Sulu Sultanate’s claim precedes Malaysia’s claim. The facts manifest the legal and historical basis of the sultanate’s claim, while Malaysia’s claim per historical record only shows that it was able to secure Sabah through disreputable and illegal means, that is without the proper exercise of legal diligence.
Malaysia’s attacks on the followers of Sultan of Sulu has no basis, a unilateral act without consultation or a meeting between the 2 parties or their representatives. First of all, the visitation is not an invasion as they would want us and the world to believe. The acts of Malaysia is not an exercise of sovereignty because Malaysia’s sovereignty on Sabah is questionable. It is the Sultanate of Sulu and the Philippine government that have sovereignty over Sabah.
Other Arguments
Principle of ‘effectivités’
In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivités. This is a French term referring to acts undertaken in the exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory.
Not every person can display state sovereignty. Only persons whose acts are attributable to a state can perform an act undertaken in the exercise of sovereignty on its behalf. The acts of private entities are in principle not attributable to a state. Thus, they cannot create a title of sovereignty for a state. In the case of the Europeans Overbeck and Dent, the issue is whether those two persons were allowed to exercise elements of governmental authority.
Under international law, the presence of a population in a territory is not in itself determinative for deciding which state is the holder of the territorial title of sovereignty. But in brief, in a territorial dispute, the legal value of effectivités is to be assessed according to the existence or nonexistence of legal title.
Effectivités undertaken by the Malaysian government do not create a territorial title because Malaysia has no title of sovereignty over Sabah. Because the title of sovereignty over Sabah is held by the Philippines, our title has primacy over contradictory effectivités of Malaysia. The effectivités of Malaysia are unlawful and cannot in themselves create a title of sovereignty.
When we analyze a territorial dispute, we have to painstakingly consider state conduct. Philippine state conduct serves to maintain our right of sovereignty over Sabah. Even if the Philippines has lost control of its territory, the country continues to claim Sabah by issuing protests and by enacting legislation, or by taking relevant conduct regarding Sabah, by which it manifests its intent to remain the sovereign.6
Legal and historical records prevails in the internet (Wikipedia, books, theses, research papers, etc.) which overwhelmingly validate, support, and evidently shows the real ownership of Sabah.
Indeed, being weak and deprived, the Philippines must depend on the rule of law, even if it is ever mindful of what Cicero said long ago: “When arms speak, laws are silent.” Our country always vies for peaceful solutions because when peace reigns, laws begin to speak.
Conclusion
The Sulu Sultanate and the Philippine Government have the legal and historical records of territorial ownership of Sabah.
In my opinion, the priority is to give justice to the Sultanate’s claim before speculative questions can be given leeway. One step at a time, a journey begins with a single step, and Rome was not built in a day. Meanwhile the injustice had been almost half a century cankering.
Philippine Laws and Cases - Atty. Manuel J. Laserna Jr.
Philippine Laws and Cases - Atty. Manuel J. Laserna Jr
Philippine Laws and Cases - Atty. Manuel J. Laserna Jr
5Historical Justifications for Territorial Claims
Alexander B. Murphy
Department of Geography, University of Oregon, Eugene, OR 97403
Philippine Laws and Cases - Atty. Manuel J. Laserna Jr
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