An Outline of the Philippine Claim to Sabah

Posted on August 28, 2013 by Atty. Merlin M. Magallona in UP Forum

Photo by the UPSIO, with the assistance of the UP Institute of Islamic Studies Library

1. From the time it was acquired by the Sultan of Sulu from the Sultan of Brunei up to 24 April
1962 when it was formally ceded and transferred to the Republic of the Philippines under the
title of sovereignty, the Sultanate of Sulu had continuously been the rightful sovereign of the
portion North Borneo known as Sabah.

1.1. In the course of internal armed conflict in the Sultanate of Brunei referred by some
historians as “civil war,” lasting for more than 10 years, the Sultan of Brunei requested the
assistance of the Sultan of Sulu, with the promise that in the event of victory he would grant him
the territories in North Borneo under his dominion. Following the victory of Sultan Muaddin of
Brunei, with the armed intervention of the Sultan of Sulu, accordingly he ceded Sabah to the
Sultan of Sulu in 1704.

1.2. By the Declaration of 24 April 1962 issued by the Heirs of the Sultan of Sulu, the territory of
Sabah as thus required by cession from the Sultan of Brunei was ceded and transferred in
sovereignty to the Republic of the Philippines. The Declaration was entitled “Recognition and
Authority in Favour of the Republic of the Philippines.”

1.2.1. By this Declaration, the Philippine claim to sovereignty and dominion over a portion of
North Borneo became a legal claim. After the cession from the Sultanate, the Philippines
acquired the rights over the territory of North Borneo which it was duty-bound as a sovereign to
protect and preserve.

1.3. This Declaration followed the petition of 5 February 1962 of the Heirs of the Sultan of Sulu
addressed to the Department of Foreign Affairs. In this Petition the Heirs expressed their
intention to have the portion of North Borneo included in the national territory of the Philippines.

1.3.1. By the Instrument of 12 September 1962, the Republic of the Philippines accepted the
cession of sovereignty over Sabah proclaimed by the Sultanate of Sabah.

1.3.2. On 24 April 1962, congress adopted “Resolution urging the President of the Philippines to
take the necessary steps for the recovery of a certain portion of the Island of Borneo and adjacent
islands which belong to the Philippines.

1.3.3. On the basis of the Declaration of 24 April 1962 of the Heirs of the Sultan of Sulu on the
transfer of sovereignty over Sabah, Congress enacted Republic Act No. 5446 amending the
Baseline Law in Republic Act No. 3046, the amendment providing that the “Philippines has
acquired dominion and sovereignty” over Sabah situated in North Borneo.
2. Malaysia’s claim to sovereignty over Sabah was based on its inclusion in the formation of the
Federation of Malaysia. It is a claim of derivative title, based on:
(a) whatever interests the British Government had in Sabah, which were derived from
(b) whatever interests the British North Borneo Company (BNBC) had in Sabah, which were
derived from whatever interests Overbeck and Dent derived from their 1878 agreement with the
Sultan of Sulu.

2.1. Sufficient evidence has been shown on the side of the Sultan of Sulu that the Deed of 22
January 1878 executed by Sultan Mohammed Jamadul Alam with Gustavus Baron de Overbeck
and Alfred Dent was an agreement of lease. “In consideration of this (territorial) lease…[they]
promise to pay His Highness…and to his heirs and successors the sum of five thousand dollars
annually to be paid each and every year.”

2.1.1. Written in Arabic, the agreement had been authoritatively translated by an American and
by a Dutch scholar as “lease.” In the Spanish translation, the agreement has been described as an
“arrendamento” which means “lease.”

2.1.2. In a speech before the House of Commons, the British Prime Minister himself, William
Gladstone, made reference to the Deed of 1878 as a contract of lease: “We do not see how this
Protectorate Agreement [of 1888], viewed in the light of the 1878 contract, can possibly divest
the Sultanate of Sulu of the latter’s sovereignty or dominion. On the contrary, after 1888, the
British North Borneo Company entered into a Confirmatory Deed with the Sultan of Sulu,
thereby confirming and ratifying what was done in 1878. And we hold the view that far from
repudiating the lease contract of 1878, the British North Borneo Company, said to be under
British protection, confirmed British protection, confirmed and reiterated in 1903 the existence
of lease relationship.” (Emphasis added.)

2.1.3. Overbeck and Dent as private individuals have no legal status in international law to
assume the power of sovereignty involved in the cession of territory.

2.1.4. Overbeck and Dent therefore had nothing to transfer in terms of title to sovereignty over
Sabah to the British North Borneo Company (BNBC).

2.1.5. By Proclamation of 25 November 1957, the Sultan of Sulu declared “The termination of
the said lease in favour of Gustavus Baron de Overbeck and Alfred Dent, their heirs and
assignees, effective the 22nd day of January 1958, and that from and after that date all the lands
covered by the said lease shall be deemed restituted to the Sultanate of Sulu.”

2.2. When the British Government granted a royal charter to the BNBC, did it provide
authorityfor the BNBC to acquire territory by title of sovereignty?

2.2.1. Lord Earl Granville, British foreign minister, in his letter of 7 January 1882 to British
Minister Morier: “The British Charter therefore differs essentially from the previous Charters
granted by the Crown to the East India Company, the Hudson’s Bay Company…, 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 confers 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 to whom the sovereignty remains vested. (Emphasis added.)

2.2.2. In response to the protest of Spain and the Netherlands in regard to the grant of BNBC
Charter in North Borneo, Glanville replied: “The territories ceded to Mr. Dent will be
administered by the Company under the suzerainty of the Sultans of Brunei and Sulu, to whom
they have agreed to pay a yearly tribute. The British government assumes no sovereign rights
whatever in Borneo. (Emphasis added.)

2.2.3. In making assurances to the Dutch Minister Count de Bylant, Glanville stressed that
BNBC was purely a private commercial enterprise, declaring: “The Majesty’s Government have
already explained to the Government of the Netherlands that the grant of the Charter did not in
any way imply the assumption of sovereign rights in North Borneo. It is therefore unnecessary to
pursue this discussion further.”

2.2.4. Reinforcing Glanville’s position, Julian Pauncefote, assistant permanent undersecretary of

the British Foreign Office, declared: “We must be careful…to preserve the Sultan’s status as a
Sovereign to the east coast of Borneo.” Further he said: “The sovereignty of North Borneo is
vested in the Sultan of Sulu”; any stipulation Britain might make “respecting that territory must
have the previous assent of the Sultan signified by him through the Company.” (Emphasis
added.)
Artwork by Arbeen R. Acuña, first appeared in Bulatlat, March 11, 2013,
http://bulatlat.com/main/2013/03/11/sultan-stop-sabah-aint-spratlys/

3. However, in derogation of the foregoing commitment and declarations, on 26 June 1946 the
British Government entered into an agreement with the British North Borneo Company (BNBC)
whereby “The company…transfers and cedes the Borneo Sovereign Rights to the Crown with
effect from the day of transfer, to the intent that the Crown shall, as from the day of the transfer,
have full sovereign rights over, and title to, the territory of the State of North Borneo and that the
said territory shall thereupon become part of His Majesty’s dominions.” The agreement was
entitled “Agreement for the Transfer of the Borneo Sovereign Rights and Assets from the British
North Borneo Company to the Crown, 26th June 1946.”

3.1.Taking into account the said Agreement of 26 June 1946, the British Crown upon the advice
of his Privy Council ordered as follows:
“1. This Order may be cited as the North Borneo Cession Order in Council, 1946, and shall come
into operation on the fifteenth of July 1946.”
“2. As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and
shall form part of His Majesty’s dominions and shall be called, together with the Settlement of
Labuan and its dependencies, the Colony of North Borneo.”
3.2. The colonization of North Borneo by the British Crown by means of Cession Order of 1946
appears to cede and transfer all “the rights, powers and interests” of BNBC in North Borneo
which the British Government itself openly acknowledged as excluding the power of sovereignty
and that territorial sovereignty remained with the Sultan of Sulu.

3.3. Hence, the legality of British annexation of North Borneo, including Sabah, persists as a
fundamental issue in the Philippine claim to Sabah.

3.3.1. Former American Governor-General in the Philippines, Francis Burton Harrison,

described the annexation as “political aggression” and urged the Philippine Government to take
action.

4. When Sabah was incorporated into the formation of the Federation of Malaysia, the illegality
of annexing Sabah as a Crown Colony remains in Malaysia’s succession-in-interest from Great
Britain.

4.1. Through the Government of Malaya, the British Government announced that its territories in
North Borneo, including Sabah, would form part of a new Federation of Malaysia.

4.2. The Philippines protested the British decision and called Britain’s attention to the sovereign
rights of the Philippines over Sabah. After protracted negotiations, the British Government
agreed to meet Philippine representatives to discuss the problem of North Borneo. Held in
London in 1963, the negotiations proved to be inconclusive. In the meantime, the founding date
of the new Federation was announced.

5. On the initiative of President Diosdado Macapagal, a Summit conference was convened in

Manila from July 30 to August 5, 1963. In this conference, on 31 July 1963, President Soekarno
of Indonesia, President Diosdado Macapagal and Prime Minister Tunku Abdul Rahman of the
Federation of Malaysia “approved and accepted the Manila Accord, paragraph 12 of which
stipulates as follows:
“The Philippines made it clear that its position on the inclusion of North Borneo in the
Federation of Malaysia is subject to the final outcome of the Philippine claim to Borneo. The
Ministers took note of the Philippine claim and the right of the Philippines to continue to pursue
it in accordance with international law and the principle of the pacific settlement of disputes.
They agreed that the inclusion of North Borneo in the Federation of Malaysia would not
prejudice either the claim or any right thereunder. Moreover, in the context of their close
association, the three countries agreed to exert the best endeavors to bring the claim to a just and
expeditious solution by peaceful means…of the parties’ own choice, in conformity with the
Charter of the United Nations and the Bandung Declaration.” (Emphasis added.)

5.1 In the same Summit Conference, the three Heads of Government signed a Joint Statement on
5 August 1963, paragraph 8 of which reads:
“In accordance with paragraph 12 of the Manila Accord, the three Heads of Government decided
to request the British Government to agree to seek a just and expeditious solution to the dispute
between the British Government and the Philippine Government concerning Sabah (North
Borneo)…The three Heads of Government take cognizance of the position regarding the
Philippine claim to Sabah (North Borneo) after the establishment of the Federation of Malaysia
as provided under paragraph 12 of the Manila Accord, that is, that the inclusion of Sabah (North
Borneo) in the Federation of Malaysia does not prejudice the claim or any right thereunder.”
(Emphasis added.)

Haji Butu, W.C. Cowie, Sultan Jamal-ul-Kiram and Alexander Cook. Cowie, manager of the
Company, sought to aid the Sultan Jamalul Kiram II to end the Mat Salleh revolt in North
Borneo in 1898. (N. Tanling “Sulu and Sabah” p. 286). Alexander was the Officer-in-Charge of
Sandakan. Photo from The Genealogy of the Sulu Royal Families (2003) by Sururul-ain
Ututalum and Abdul-Karim Hedjazi, published by Professional Press (USA).
Photo by the UPSIO, with the assistance of the UP Institute of Islamic Studies Library

6. Malaysia had repeatedly acknowledged the Philippine claim to Sabah and that it is a claim that
should be settled as soon as possible, including the prospect of settlement in the International
Court of Justice. On its part, the Philippines persistently offered the settlement of dispute arising
from its claim to Sabah.

6.1. In February 1964, the Malaysian Prime Minister had the understanding with the Philippine
President to discuss “as soon as possible the best way of settling the dispute, not precluding
reference to the International Court of Justice.”

6.2. In August 1964, the two governments agreed in an exchange of aides memoir to a meeting
of their representatives in Bangkok for the purpose of clarifying the Philippine claim and of
discussing the means of settling the dispute.
6.3. In February 1966, in response to Malaysia’s diplomatic note reiterating its assurance to
comply with the Manila Accord and the concomitant Joint Statement, the Philippines proposed
that “both Governments agree as soon as possible on a mode of settlement that is mutually
acceptable to both parties.”

6.4. In June 1966, the two Governments, in a joint communiqué, agreed once again to abide by
the Manila Accord and the Joint Statement; they reiterated their common purpose to clarify the
Philippine claim and the means of settling it.

6.5. In July 1968, the Philippine delegation presented the Malaysian delegation with a written
question, “Will you discuss with the modes of settlement of our claim at the conference in
Bangkok, irrespective of your own unilateral assessment of the sufficiency of the clarification
given?” Malaysia’s answer was unqualifiedly in the affirmative.

6.6. In August 1968, again in a joint communiqué, the two Governments agreed that talks on an
official level would be held as soon as possible regarding the Philippine claim to Sabah.

6.7. The foregoing undertakings assume significance for the reason that they are not unilateral
acts of the Philippines; they are commitments jointly made by Malaysia and the Philippines.
They repeatedly affirm Malaysia’s recognition of the existence of the Philippine claim to Sabah
and its willingness to settle the dispute arising from this claim.

6.7.1. In complete disregard of its commitments, Malaysia has been in full retreat. It is now in
denial of the existence of the Philippine claim to Sabah. In consequence, it rests its case on the
illegality of the colonization of Sabah by the British Crown.