Historic right or legal title

The phrase “historic right or legal title” first appeared in Philippine constitutional theory under the 1973 Constitution. The Marcosian innovation was intended to include in the constitutional definition of Philippine national territory the long-disputed claim over a portion of North Borneo, or Sabah — a territory that once belonged to the Sultan of Brunei, and ceded in favor of the Sultan of Sulu for the latter’s assistance in quelling a rebellion in the former’s kingdom. The property domain was once subject of an 1878 perpetual lease to a British entity, the British North Borneo Company, which Malaysia recognizes but considers as cession subject to the perpetual payment of rent that Malaysia remits to the current heirs of the Sultan of Sulu.

When the post-Edsa 1987 Constitution was adopted, that phrase was removed from the definition of the national territory. The deletion was thought to be an accommodation of Malaysia with the sense of dropping the Philippine claim over Sabah that was ceded by the heirs of the Sultan of Sulu to the Philippine state in the 1960s during the Macapagal administration. But the records of the deliberation of the 1986 Constitutional Commission will clarify that dropping the Sabah claim was never intended because the Philippine territory as defined by the 1987 Constitution would still include those territories belonging to the country by historic right or legal title.

The iconic phrase was once more thrust into the limelight via the landmark arbitral ruling over maritime entitlements in the South China Sea that was central to the dispute between China and the Philippines. An international tribunal held that historic right or title does not exist under the UN Convention on the Law of the Sea. The ruling debunked China’s maritime claim over almost the entire breadth of the South China Sea based on the so-called “nine-dash line” historic right.

China’s audacity in naming certain maritime features in Benham Rise within the Philippines’ exclusive economic zone and the extended continental shelf — a right allowed in international law for discoverers of maritime features — raised genuine concern that the Chinese nomenclature could eventually lay the predicate for China’s claim of historic right or title over a maritime zone in the Pacific Ocean. The alarm rang not only for patriotic Filipinos but also for a long-time ally across the Pacific. In international law, a territorial claim could start with historic right via an incipient discovery of a terra nullius identified through an appellation given by its discoverer.

The iconic phrase currently pervades the public political debate with its proposed inclusion in the envisioned federal constitution. No less than the ruling party espoused the inclusion, obviously to reassert the Philippine claim over the Sultan of Sulu’s property in North Borneo — an understandably welcome political move for Muslim Filipinos in the South. Now, it is part of the definition of national territory in the proposed federal constitution.

The inclusion of the Sabah claim in the proposed federal constitution as part of Philippine territory by historic right or title might just serve to perpetuate the unresolved dispute between Malaysia and the Philippines because the Philippines would already be barred by the constitution from giving away through diplomacy a part of its territory.

A territorial or sovereignty claim over Sabah may not be successful because it might turn out that the Philippines only succeeded the heirs of the Sultan of Sulu with respect to their dominion over the Sabah property, or a simple case of patrimonial property ownership. The Philippines could not have succeeded the imperium of the Sulu sultanate, which lost its sovereignty to the United States under the 1915 Carpenter Agreement. The United States never exercised sovereignty over Sabah even as it recognized Sabah as a protectorate and territory of the United Kingdom under the Boundaries Treaty of 1930.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.