(Article written last March 20, 2013)

The world was shaken with the terrifying news of a group of 180 ethnic Tausug gunmen named “Royal Sulu Army” who arrived at Malaysia’s eastern Sabah state on the island of Borneo between February 9 - 12, 2013 and has been found to be involved in the deaths of around 27 people including eight Malaysian police officers. (Retrieved from: http://www.globaliconflictanalysis.com/2013/03/philippine-militants-malaysia-borneo on March 7, 2013pm)

And the commotion is the revival of the claim of sovereignty by the Sultan of Sulu over Sabah, a territorial issue which had disturbed not only the peace and order in the island but also the foreign relations between Malaysia and of the Philippines.

Territory is one of the essential elements in the existence of a state and an ownership of a territory is a one great display of power.  And in the Philippines, territorial integrity is one of the embodied interests that our country is bound to protect. That is why, the Philippines is eager to protect its claimed rights over the territory for the sake of the Filipino settlers in the island. The issues are sensitive, convoluted and involve the basis and motivation of the claim, the heirs, the payment of rental fees, and Malaysia’s role in the government’s peace deal with the Muslims in Mindanao.

Yet the question is which country has the legal claim of sovereignty over Sabah?

This article will talk about the legal and historical basis of Philippines and Malaysia for their claims over Sabah that had caused uproar in the world, which until now remained unsettled. 

Sabah is the northern part of Borneo. It is bordered by Sarawak on its south western side and Kalimantan (Indonesian Borneo) to the south. Sabah has a coastline of approximately 800 to 900 miles and with the South Chuan Sea in the west and north, the Sulu Sea in the northeast and the Celebes Sea in the east. Sabah’s total land area is 76, 115 sq.km (29, 388 sq miles). Sabah’s population is about 2.5 million. It is 1, 961km from Hong Kong; 1, 143 km from Manila; 1, 495km from Singapore; 1, 678 km from Kuala Lumpur and 2, 291 km from Taipei. North Borneo is much undeveloped and very rich in natural resources. One of the wealthiest oil producing countries is located in same island of Borneo, the tiny Sultanate of Brunei. (Retrieved from: http://www.epilipinas.com/sabahclaim.htm on March 19, 2013 at 11:42am) 

Sabah is also rich of natural resources especially in oil reserves. Sabah’s oil and gas industry has been operating for over 30 years, and in 2009 its oil and gas were the biggest contributor to the island’s gross domestic product. Sabah’s oil reserves were calculated at 1.5 billion barrels in 2011, but new oilfields have been discovered since to raise the estimate substantially. The island’s gas reserves have been estimated at 11-trillion cubic feet, with four new oilfields being found in the waters in the last two years. (Retrieved on March 19, 2013 at 12:47 am from http://manilastandardtoday.com/2013/03/01/the-riches-of-sabah/)

For the Malaysian perspective, the reason why Philippines cannot claim Sabah as part of it territory it's because the Sultanate of Sulu had, by its several actions and by various separate instruments between 19 April 1851 and 26 June 1946, relinquished and ceded all of its rights, interests and dominion over what was previously referred to as North Borneo (now known as the state of Sabah, Malaysia).  These various instruments are:

1. The Act of Re-Submission between Spain and the Sultan of Sulu dated 19 April 1851, which was confirmed by the Protocol dated 22 July 1878, whereby the island of Sulu and its dependencies were annexed by the Spanish Crown;
2. The Cession and Agreement dated 22 January 1878 between the Sultan of Sulu, and Mr Alfred Dent and Baron von Overbeck as representatives of a British company, whereby the Sultan of Sulu granted and ceded to the latter all of his rights and powers over the mainland of the island of Borneo;
3. The Commission (report) dated 22 January 1878 whereby the Sultan of Sulu appointed Baron von Overbeck the “Dato Bëndahara and Rajah of Sandakan”, and ceded all of the Sultanate's rights to Baron von Overbeck as the “supreme ruler over the said dominions”;
4. Baron von Overbeck and Mr Alfred Dent in turn relinquished all their rights to a British company, later the British North Borneo Company;
5. The Protocol dated 11 March 1877 between Spain, Germany and Great Britain;
6. The Protocol dated 7 March 1885 between Spain, Germany and Great Britain whereby, inter alia, the Spanish Government relinquished to the British Government all claim of sovereignty over the territories of the continent of Borneo and its islands;
7. The Agreement dated 12 May 1888 between the British Government and the British North Borneo Company for the creation of the State of North Borneo;
8. The Treaty of Peace of Paris dated 10 December 1898 between Spain and the United States of America whereby Spain ceded the Philippine Archipelago to the United States of America;
9. The Confirmation of Cession dated 22 April 1903 between the Sultan of Sulu and the British Government expanding the scope of the Cession and Agreement of 22 January 1878 between the Sultan of Sulu and Mr Alfred Dent and Baron von Overbeck;
10. The Convention dated 2 January 1930 between the United States of America and Great Britain delimiting the boundary between the Philippine Archipelago and the State of North Borneo;
11. The Agreement dated 26 June 1946 between the British North Borneo Company and the British Government whereby the British North Borneo Company relinquished and transferred all of its interests, powers and rights in respect of the State of North Borneo to the British Crown, whereby the State of North Borneo became a British colony.
12. The Agreement dated 9 July 1963 between the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore relating to Malaysia, which entered into force on 16 September 1963, whereby the colony of North Borneo was to be “federated with the existing States of the Federation of Malaya as the [State] of Sabah”. (Retrieved on March 19, 2013 at 11:41 pm from: http://www.interaksyon.com/article/56770/malaysian-perspective--why-the-philippines-cannot-claim-sabah).

On the other hand, Philippines based their legal claims over Sabah on the several historical facts and court decisions.

The Sultanate of Sulu was granted the territory as a prize for helping the Sultan of Brunei against his enemies and from then on, that part of Borneo is recognized as part of the Sultan of Sulu’s sovereignty. Baron Von Overbeck, an Austrian partner representing The British North Borneo Co. and his partner British Alfred Dent leased the territory known as “Sabah”-roughly translated as the “land beneath the winds”. The contract was between Sri Paduka Maulana Al Sultan Mohammad Jamalulalam representing the sultanate as the owner and sovereign of Sabah on one hand and of that Gustavus Baron de Overbeck and Alfred Dent as the lessee of Sabah, was executed on June 22, 1878. The 1939 court judgment on the claim had handed ownership of North Borneo to the heirs of the Sultanate prior to the formation of Malaysian federation in 1963. The judgment of the chief justice C.F.C, Makaskie of the High Court of North Borneo in the civil suit filed by the late Dayang Dayang Hadji Piandao and eight others heirs of the Sultan of Sulu, including the famous Putlih (Princess) Tarhata Kiram, upheld the validity of the claim of the heirs. (Retrieved on March 19, 2013 at 11:42am from http://www.epilipinas.com/sabahclaim.htm)

Also, a book written by Emmanuel Yap founder of the People’s Patriotic Movement entitled “The Facts about Sabah and the Royal Sultanate of Sulu and North Borneo”, answers the question:  does the Philippine government have a right of dominion over the territory and therefore, a duty to lay a claim? 

Yes. A series of acts and transactions created the cumulative effect of transferring dominion and sovereignty to the Philippine government. In 1962, a formal instrument of transfer of sovereignty was executed by the Sultanate in favor of the Republic of the Philippines. However, a proviso in the 1962 document states that “Should the Republic of the Philippines fail to recover North Borneo (Sabah), after exhausting all peaceful means, this transfer document shall, ipso facto, become null and void and the Sultan of Sulu shall be free to assert his sovereignty over North Borneo by other means available to all sovereign claimants.” (Retrieved on March 19, 2013 at 11:56pm from http://manilastandardtoday.com/2013/04/08/legal-basis-for-the-sabah-claim/)

So, has the Philippines laid claim on Sabah? Yes. On September 4, 1950, when the Federation of Malaysia was not yet existent, the Philippines advised the British government that a dispute over North Borneo existed. This position was reiterated by the Department of Foreign Affairs to the British Embassy on 22 June 1962. Then on 12 September 1962, the Philippines sought the holding of talks with the United Kingdom regarding the dispute. This led to the holding of a Ministerial Conference in London in 1963. A series of important events relating to the claim followed. (Retrieved on March 19, 2013 at 11:56pm from http://manilastandardtoday.com/2013/04/08/legal-basis-for-the-sabah-claim/)

The tension on the standoff of the two countries grows stronger making it difficult to solve the dispute with the territorial integrity of each state at stake.

In international law, there are number of methods of territorial acquisition, amongst others are prescription and cession. 

Cession is the process where a state may acquire sovereignty over a territory through the process of transfer of sovereignty by the sovereign to another. Prescription on the other hand, refers to the acquisition of sovereignty, maintained by way of actual of exercise of sovereignty maintained for a reasonable period of time without objection from any states. 

As the others would claim it, the former territory of North Borneo was ceded or leased in perpetuity to the British in January 1878 and Malaysia, since 1963, had exercised prescription and administered Sabah without any consistent objection from the member-states of United Nations. However, it must be considered that the lease agreement between the two parties is definitely a proof otherwise there will be no basis for any agreement if such ownership was not established at all.

Also, the 1939 court judgment on the claim handed ownership of North Borneo to the heirs of the sultanate prior to the formation of Malaysian federation in 1963. Since the time memorial, the numerous ethnic tribes in the southern Philippines notably the Tausugs and Badjaos have been traversing the Celebes Sea from Sulu to Borneo and other parts of Indonesia. These Muslim Filipinos have considered Sabah as part of their domain as the ancestors have been doing centuries ago. That part of the Southeast Asia is bound by common religion, history and people.

On March 2, 2013, President Aquino had argued the armed followers of the Sultan who had entered Lahad Datu in Sabah to surrender without conditions to prevent further loss of lives. The followers of the Sultan refused to do so resulting in the clashes of the Malaysian Police.

Malaysia, on the other hand, doesn’t want to give up their claim on Sabah. The Philippines had brought this issue to the International Court but to no avail. There are some apprehensions, as some quarters are claiming that nothing will come out of this revived interest in the Sabah claim, as they are saying that the government officials of the Philippine Government as in the past can be bribed to lose interest in the claim of which, there is no concrete evidence to this effect. Moreover, the Malaysians are hoping that it will die a natural death for the lack of will of the Philippine claimants to pursue further the claim over the years. But as Kiram would view it, he doesn’t need any help from the Philippine government in the present revival of his claim over the territory.

In conclusion, the Philippine and Malaysian government is on struggle over their claim of Sabah. The Aquino administration, as contested by the other would like to give up the claim over the disputed area in order to avoid further loss of lives and problem with the diplomatic relations with Malaysia. Yet, the territory is being claimed and fought by our Filipino Muslim brothers. As viewed in international law, the Sultanate’s claim of the area as their ancestral territory does not carry much weight and is open to debate. Will the Aquino give up the claim over Sabah? If this will happen, what will be the future of our Muslim brothers living in the island? In this issue involving property dispute, possession is everything.Still, the question remains, is Sabah: for Philippines or Malaysia?