Revisiting the Sabah claim

The Sabah issue recently resurfaced after a French arbitrator awarded almost $15 billion to the heirs of the Sultanate of Sulu, arising from the Deed of 1878, which was originally entered into by Hong Kong-based Austrian businessman Gustavus Baron von Overbeck. According to www.officialgazette.gov.ph, the Commission from the Sultan of Sulu appointed Overbeck as Datu Bandahara and Rajah of Sandakan on Jan. 22, 1878.

The contract over North Borneo (or Sabah) was later transferred to Alfred Dent, who eventually organized the British North Borneo Company that administered the territory until 1945, when the company was dissolved and all its properties transferred to the British monarchy.

Paul Cohen, the lead co-counsel of the Sulu heirs in the French arbitration case, clarifies that the case involves a purely contractual matter. Nonetheless, the Philippine government took notice of the arbitration award, with the government counsel reportedly looking into the impact of the award on the country’s sovereignty claim over Sabah. The claim has long been in the back burner while taking its silent toll on otherwise warm relations with our Asean neighbor, Malaysia.

Cohen’s clarification highlights the dichotomous aspects of the Sabah claim; one is proprietary from the perspective of the Sulu heirs, and the other, political from the perspective of the Philippine government. The heirs’ proprietary claim is governed by private law, while the claim of sovereignty is governed by public international law. The claims are, in a way, mutually exclusive because the heirs do not claim sovereignty, while the Philippines does not claim proprietary right.

Long before the Philippine archipelago was discovered by Magellan, North Borneo was in the sovereign possession of the Sulu sultan who, since time immemorial, had been recognized as a sovereign ruler in his own right by Spain, Great Britain, and other European powers through a series of treaties of peace, friendship, and commerce. From 1521 to 1898, Spain ruled the Philippines but never ruled over North Borneo, which was administered by the British North Borneo Company from 1881 until 1945. When the Americans took over the Philippines from the Spaniards by virtue of the Treaty of Paris of 1898, the United States did not govern North Borneo either. Thus, there never was an instance when the sovereign predecessors of the present-day Philippines exercised sovereignty over North Borneo.

The Philippine claim over Sabah solely hinges on the purported transfer of sovereignty rights by the sultan’s heirs to the Philippine government in April 1962. Then Acting Secretary of Foreign Affairs Salvador P. Lopez accepted on behalf of the Republic the cession and transfer of territory of North Borneo. The transfer of sovereignty is uncertain, given the fact that in 1962, the Sulu sultanate does not exist as a sovereign entity. Sovereignty is an attribute of statehood, thus only states may transfer territorial sovereignty.

The Carpenter Agreement of 1915 also did not include North Borneo, which could have argued that the sultan would still exercise residual sovereignty. The absence of effective territorial administration, or the principle of effectivités, and the subsequent exercise of the right of self-determination by the Sabah residents under the auspices of the Cobbold Commission dissipated whatever might be left of such residual sovereignty. Sovereignty is coextensive with territory.

The Philippine territory is circumscribed by treaty limits defined in the 1935 Constitution, like the Treaty of Paris of 1898 and the Boundaries Treaty of 1930. Such territory cannot be enlarged or diminished without violating the doctrine of uti possidetis juris (Latin for “as [you] possess under law”). This principle of international law provides that newly formed sovereign states should retain the internal borders that their preceding dependent area had before their independence.

The Philippine claim of sovereignty, thus, might not pass muster under public international law.

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Frank E. Lobrigo is a retired judge of the regional trial court. Before joining the bench, he practiced law for 20 years.