In 2013, some 200 loyal but ragtag followers of the Sultanate of Sulu tried to literally evict Malaysia from Sabah acting on a 1878 deed between the Sultanate and the British North Borneo Company, which is the center of the territorial dispute.
It was almost an identical deal with Hong Kong or Macau, but just as the Chinese enforced the handover of its territories, the Sultanate, or by extension the Philippines to which Sabah was ceded by descendants of the Sultan, holds an empty bag.
A word’s interpretation in the agreement called “deed of pajak” executed between the Sulu sultan and the pair of Austrian Gustavus Baron de Overbeck and an Englishman named Alfred Dent who represented the British North Borneo Co. (BNBC), which later transferred the lease to the British crown and then to Malaysia, is the crux of the conflicting claims.
The word “pajak” was taken as a lease by the Sultanate but Malaysia considered it as cession, which according to the late Sen. Miriam Defensor Santiago was not possible.
She said BNBC was created by a British royal grant, which does not contain any provision or text granting it authority to acquire or hold territory for and on behalf of the British Crown.
“The claim of Malaysia today is ultimately traced to the claim of the BNBC,” she said.
Santiago said since the deed was merely a lease, the Sulu sultan never transferred sovereignty to the Europeans.
“Since no transfer of sovereignty was involved in the 1878 deed, no transfer of sovereignty has ever passed to Malaysia,” she said.
The senator even quoted several statements by the British foreign minister at that time, Lord Granville, that sovereignty remained in the Sulu sultan.
She also recalled the Philippine claim has been supported by no less than the British minister of foreign affairs at that time, Earl Granville. The British official was negotiating the 1885 protocol and, at one point, he was replying to the protest of Spain and the Netherlands over the grant of the royal charter to BNBC, which included North Borneo. Granville said the BNBC charter also “recognizes the grants of territory and powers of government made and delegated by the Sultans in whom the sovereignty remains vested.”
In the further course of negotiations among certain colonial powers, Granville again stated: “The sovereignty in our view is vested in the Sultans and was merely delegated by them to the company by their concessions.”
Santiago said in international law, “as it has evolved today,” the title to territory refers to the acts or facts that constitute the legal foundation for the establishment of right over territory.
A title of sovereignty can be established or determined by a treaty, which could be a peace treaty, a treaty of delimitation, or as claimed in the Sabah case, a deed of cession.
“The Philippines has never made any such renunciation. At no point can the Philippines be considered to have acquiesced to the claim of Malaysia,” she noted.
Santiago, who was named into the International Criminal Court (ICC), then stated her opinion about the liability of Malaysia.
“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 Filipino individuals and population associated with Sabah.”
She then recommended a third-party fact-finding mission into the 2013 Lahad Datu incident, which if it had taken place would have taken up the Sabah territorial dispute.
Malaysia has been paying an equivalent of P77,000 annually for the lease, which is even way below the minimum wage earned by an ordinary Filipino worker for a year.
That has been stopped as a Malaysian government penalty to the Sultanate over the Lahad Datu incursion.
Even to the eyes of somebody uninitiated in international law, beyond “pajak,” a historical aberration remains in the Sabah issue that needs straightening out.