Sovereignty dispute

Claims by China and Taiwan

Map depicting China's territory in South China Sea, with Scarborough Shoal depicted within its U-shape
line, by the Republic of China's Ministry of the Interior, 1947
The People's Republic of China and the Republic of China (Taiwan) claim that Chinese people
discovered the shoal centuries ago and that there is a long history of Chinese fishing activity in the area.
The shoal lies within the nine-dotted line drawn by China on maps marking its claim to islands and
relevant waters consistent with UNCLOS within the South China Sea.
[10]
An article published in May
2012 in the PLA Daily states that Chinese astronomerGuo Shoujing went to the island in 1279, under
the Yuan dynasty, as part of an empire-wide survey called "Measurement of the Four Seas"
().
[11]
In 1979 historical geographer Han Zhenhua () was among the first scholars to claim
that the point called "Nanhai" (literally, "South Sea") in that astronomical survey referred to Scarborough
Shoal.
[12]
In 1980 during a conflict with Vietnam for sovereignty over the Paracel Islands (Xisha Islands),
however, the Chinese government issued an official document claiming that "Nanhai" in the 1279 survey
was located in the Paracels.
[13]
Historical geographer Niu Zhongxun defended this view in several
articles.
[14]
In 1990, a historian called Zeng Zhaoxuan () argued instead that the Nanhai measuring
point was located in Central Vietnam.
[15]
Historian of astronomy Chen Meidong () and historian of
Chinese science Nathan Sivin have since agreed with Zeng's position in their respective books about
Guo Shoujing.
[16][17]

In 1935, China, as the Republic of China (ROC), regarded the shoal as part of the Zhongsha Islands.
That position has since been maintained by both the ROC, which now governs Taiwan, and the People's
Republic of China (PRC).
[18]
In 1947 the shoal was given the name Minzhu Jiao (Chinese: ;
literally: "Democracy Reef"). In 1983 the People's Republic of China renamed it Huangyan
Island with Minzhu Jiao reserved as a second name.
[19]
In 1956 Beijing protested Philippine remarks that
the South China Sea islands in close proximity to Philippine territory should belong to the Philippines.
China's Declaration on the territorial Sea, promulgated in 1958, says in part,
The breadth of the Territorial Sea of the People's Republic of China shall be twelve nautical miles. This
applies to all territories of the People's Republic of China, including the Chinese mainland and its coastal
islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the
Xisha Islands, the Zhongsha Islands [italics added], the Nansha Islands and all other islands belonging
to China which are separated from the mainland and its coastal islands by the high seas.
[20]

China reaffirmed its claim of sovereignty over the Zhongsha Islands in its 1992 Law on the territorial Sea
and the Contiguous Zone. China claims all the islands, reefs, and shoals within a U-shaped line in the
South China Sea drawn in 1947 as its territory. Scarborough shoal lies within this area.
[20]

China further asserted its claim shortly after the departure of the US Navy force from Subic, Zambales,
Philippines. In the late 1970s, many scientific expedition activities organized by State Bureau of
Surveying, National Earthquake Bureau and National Bureau of Oceanography were held in the shoal
and around this area. In 1980, a stone marker reading "South China Sea Scientific Expedition" was
installed on the South Rock, but was removed by Philippines in 1997.
[9]


Claim by the Philippines
1774 map of the Philippine Islands depicting Scarborough Shoal as Panacot Shoal
The Philippines states that its assertion of sovereignty over the shoal is based on the juridical criteria
established by public international law on the lawful methods for the acquisition of sovereignty. Among
the criteria (effective occupation, cession, prescription, conquest, and accretion), the
Philippine Department of Foreign Affairs (DFA) has asserted that the country exercised both effective
occupation and effective jurisdiction over the shoal, which it terms Bajo de Masinloc, since
its independence. Thus, it claims to have erected flags in some islands and a lighthouse which it
reported to the International Maritime Organization. It also asserts that the Philippine and US Naval
Forces have used it as impact range and that its Department of Environment and Natural Resources has
conducted scientific, topographic and marine studies in the shoal, while Filipino fishermen regularly use it
as fishing ground and have always considered it their own.
[21]

The DFA also claims that the name Bajo de Masinloc (translated as "under Masinloc") itself identifies the
shoal as a particular political subdivision of the Philippine Province of Zambales, known as
Masinloc.
[21]
As basis, the Philippines cites the Island of Palmas Case, where the sovereignty of the
island was adjudged by the international court in favor of the Netherlands because of its effective
jurisdiction and control over the island despite the historic claim of Spain. Thus, the Philippines argues
that the historic claim of China over the Scarborough Shoal still needs to be substantiated by a historic
title, since a claim by itself is not among the internationally recognized legal basis for acquiring
sovereignty over territory.
It also asserts that there is no indication that the international community has acquiesced to China's
historical claim, and that the activity of fishing of private Chinese individuals, claimed to be a traditional
exercise among these waters, does not constitute a sovereign act of the Chinese state.
[22]

The Philippine government argues that since the legal basis of its claim is based on the international law
on acquisition of sovereignty, the Exclusive Economic Zone claim on the waters around Scarborough is
different from the sovereignty exercised by the Philippines in the shoal.
[21][23]

The Philippine government has proposed taking the dispute to the International Tribunal for the Law of
the Sea (ITLOS) as provided in Part XV of the United Nations Convention on the Law of the Sea, but the
Chinese government has rejected this, insisting on bilateral discussions.
[24][25][26]

The Philippines also claims that as early as the Spanish colonization of the Philippines, Filipino
fishermen were already using the area as a traditional fishing ground and shelter during bad weather.
[27]

Several official Philippine maps published by Spain and United States in 18th and 20th centuries show
Scarborough Shoal as Philippine territory. The 18th-century map "Carta hydrographica y chorographica
de las Islas Filipinas" (1734) shows the Scarborough Shoal then was named as Panacot Shoal. The map
also shows the shape of the shoal as consistent with the current maps available as today. In 1792,
another map drawn by the Malaspina expedition and published in 1808 in Madrid, Spain also showed
Bajo de Masinloc as part of Philippine territory. The map showed the route of the Malaspina expedition to
and around the shoal. It was reproduced in the Atlas of the 1939 Philippine Census, which was
published in Manila a year later and predates the controversial 1947 Chinese South China Sea Claim
Map that shows no Chinese name on it.
[28]
Another topographic map drawn in 1820 shows the shoal,
named there as "Bajo Scarburo," as a constituent part of Sambalez (Zambales province).
[29]
During the
1900s, Mapa General, Islas Filipinas, Observatorio de Manila, and US Coast and Geodetic Survey Map
include the Scarborough Shoal named as "Baju De Masinloc."
[30]
A map published in 1978 by the
Philippine National Mapping and Resource Information Authority, however, did not indicate Scarborough
Shoal as part of the Philippines.
[31]

In 1957, the Philippine government conducted an oceanographic survey of the area and together with
the US Navy force based in then U.S. Naval Base Subic Bay in Zambales, used the area as an impact
range for defense purposes. An 8.3 meter high flag pole flying a Philippine flag was raised in 1965. An
iron tower that was to serve as a small lighthouse was also built and operated the same year.
[32][33]
In
1992, the Philippine Navy rehabilitated the lighthouse and reported it to the International Maritime
Organization for publication in the List of Lights. As of 2009, the military-maintained lighthouse is non-
operational.
[34]


Territorial map claimed by the Philippines, showing internal waters, territorial sea, international treaty
limits and exclusive economic zone.
The 1900 Treaty of Washington provided that any and all islands belonging to the Philippine archipelago,
lying outside the lines described in Article III of theTreaty of Paris, were also ceded to the United States.
This included Scarborough Shoal, which is outside the Treaty of Paris treaty lines. In effect, the Treaty of
Washington amended the Treaty of Paris, so that the islands ceded by Spain to the U.S. included islands
within and outside the Treaty of Paris treaty lines, so long as Spain had title or claim of title to the
islands.
The DFA asserts that the basis of Philippine sovereignty and jurisdiction over the rock features of Bajo
de Masinloc are not premised on the cession by Spain of the Philippine archipelago to the United States
under the Treaty of Paris, and argues that the matter that the rock features of Bajo de Masinloc are not
included or within the limits of the Treaty of Paris as alleged by China is therefore immaterial and of no
consequence.
[21][23]

President Ferdinand Marcos, by virtue of the Presidential Decree No. 1596 issued on June 11, 1978
asserted that islands designated as the Kalayaan Island Group and comprising most of the Spratly
Islands are subject to the sovereignty of the Philippines,
[35]
and by virtue of the Presidential Decree No.
1599 issued on June 11, 1978 claimed an Exclusive Economic Zone (EEZ) up to 200 nautical miles
(370 km) from the baselines from which their territorial sea is measured.
[36]

The Philippine's bilateral dispute with China over the shoal began on April 30, 1997 when Filipino naval
ships prevented Chinese boats from approaching the shoal.
[1]
On June 5 of that year, Domingo Siazon,
who was then the Philippines Secretary of Foreign Affairs, testified in front of the Committee on Foreign
Relations of the United States Senate that the Shoal was "a new issue on overlapping claims between
the Philippines and China".
[37]

In 2009, President Gloria Macapagal-Arroyo enacted the Philippine Baselines Law of 2009 (RA 9522).
The new law classified the Kalayaan Island Group and the Scarborough Shoal as a regime of islands
under the Republic of the Philippines.
[3][38]







April 27, 2012, marks the formal end date of the Balikatan joint military exercises of US and Philippine military
forces. Considered a yearly event, Balikatan draws its proximate basis from the 1999 US-Philippines Visiting
Forces Agreement (VFA), but the ultimate basis for the parties' joint exercises is the 1952 US-Philippines Mutual
Defense Treaty (MDT). While Balikatan's timing may be coincidental, the ongoing standoff between Chinese and
Philippine gunboats in Scarborough Shoal is certainly not, thus implicating potential US intervention in yet another
theater of war, this time in the Pacific. The gunboat standoff is now on its seventeenth day, triggered by a plausible
case of illegal fishing activities by Chinese fishermen in Philippine exclusive economic zones: the Philippine navy
then sought to arrest Chinese fishermen found to have harvested live corals, live baby sharks, and other rare or
endangered marine species in Scarborough Shoal "Panatag Shaol" under the local vernacular which refers to
a group of islands and reefs in an atoll located just 124 nautical miles from the Philippine province of Zambales,
but lying more than 500 nautical miles from Hainan, the nearest Chinese port. Scarborough Shoal is approximately
230 kilometers from Luzon, a main island of the Philippines, and 1,200 kilometers from Hainan province. As
Philippine naval vessels attempted to seize illegal cargo and make the arrest, Chinese ships intervened and
established a defensive posture. To date, no arrest or seizure could be made without escalating what is still a
defense posture by both navies. The Chinese navy also dropped steel posts and navigation buoys to mark the waters
around Scarborough in "defense" of its "national territory." As of April 26, Philippine authorities spotted two
unidentified aircraft in Scarborough's airspace which, according to Philippines Foreign Affairs Secretary Albert del
Rosario, were "not from the Philippines."
Article IV of the MTD between the US and Philippines requires each party to recognize an "armed attack" in the
"Pacific Area" on either party as an attack against the other, the happening of which obliges them to "act to meet
the common dangers in accordance with its constitutional processes." Read with Article IV, Article V defines an
"armed attack" as "includ[ing] an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific."
Noteworthy is the fact that the treaty provisions do not use "use or threat of force" as operative terms, but "armed
attack."

As the twenty-eighth Balikatan exercises draw to a close with each side showcasing the program as a "success,"
China was quick to warn the Philippines government that a US presence may "internationalize" the situation, as a
number of Balikatan exercises were held near or at the West Philippine Sea or the South China Sea
depending on one's vantage point. In fact, China considers both Scarborough and the Spratly Islands disputes as
"regional" or even "bilateral" in nature. The Philippines, speaking through its foreign minister, proposed that the
parties raise Scarborough to the International Tribunal on the Law of the Sea (ITLOS), an idea which the Chinese
government flatly rejected. ITLOS is a key dispute resolution component of the UN Convention on the Law of the
Sea (UNCLOS).

Is this a case where a maritime dispute, described in terms of which country is encroaching upon the other's
"exclusive economic zone," and a territorial dispute, described in terms of "national territory," can and ought to be
distinguished? Or does the answer to one question determine the other? Commentators have argued that the
maritime dispute and the territorial dispute are separable and ought to be resolved independently, even to the extent
of implying that each question would require different venues. Many are tempted, on one hand, to associate
UNCLOS solely with maritime questions, and the International Court of Justice (ICJ) and the Permanent Court of
Arbitration with the "grander" and "greater" questions of territorial claims. It is unavoidable, however, that any
attempt at drawing archipelagic baselines which are inherently territorial questions under UNCLOS will
certainly determine how far exclusive economic zones, or for that matter, the contiguous zones and territorial
waters of a country can be.

Questions of substantive international norms aside, the more pressing question is whether China, having formally
ratified UNCLOS in 1996, can be bound at all by the compulsory dispute resolution mechanisms of the UNCLOS
regime. In a declaration made on August 25, 2006, after China's 1996 ratification of UNCLOS, the Chinese
government made a statement to the effect that it "does not accept any of the procedures provided for in Section 2
of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b), and
(c) of Article 298 of the Convention." That Section 2 is captioned as "Compulsory Procedures Entailing Binding
Decisions." Articles 286 and 287 of the same section, read together, point to ITLOS, the ICJ, an arbitral tribunal
"constituted in accordance with Annex VII" (which may refer to the Permanent Court of Arbitration), and a
"special arbitral tribunal" likewise under Annex VII. Thus there can be at least four venues for Scarborough if the
dispute is brought to UNCLOS.

It seems that China, while a state party to UNCLOS, is not bound by its compulsory processes, ITLOS included.
And even if China had not lodged its 2006 declaration which effectively served as a reservation against any binding
outcome of UNCLOS's grievance system, China's ratification instrument to UNCLOS made a decade earlier
stated that "The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed
in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was
promulgated on 25 February 1992."

Does China consider Scarborough as among its "archipelagos" and "islands" listed under its basic law? Regardless
of venue, China seems to be posturing for an historical claim, or an historical title, to the Scarboroughs, which is
consistent with its claim over the Spratly Islands. In The Law of the Seas and the Spratly Islands Dispute, I
discussed the Philippines-China dispute over the Spratlys, a group of islands which lie at the heart of one of the
world's busiest sea lanes and are known to hold rich oil and natural gas reserves. Time and again, as with
Scarborough, the Chinese government insists that the Spratly dispute should be resolved through bilateral
negotiations, while the Philippines and its long-time ally, the US, call for a multilateral approach. Whether bilateral
or multilateral, and whether it be Scarborough or the Spratlys, in meeting the greater question of who really owns
the South China Sea (or West Philippine Sea, again depending on one's vantage point) there can be no avoidance of
a rules-based regime of some kind, treaty or custom.

A less ambitious, but a potentially viable venue, might be the Association of Southeast Asian Nations (ASEAN). In
2002, China and ASEAN signed the Declaration on the Conduct of Parties in the South China Sea, which called for
the exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace
and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands,
reefs, shoals, cays, and other features and to handle their differences in a constructive manner.
Del Rosario very recently announced that ASEAN should take a more active role, as both Scarborough and
Spratlys would clearly fall under the 2002 ASEAN-China Declaration. While Del Rosario was quick to petition
ASEAN (quite understandably) to intervene, deploring China's continuing breach of the 2002 declaration,
ASEAN's experience in dispute resolution remains shaky, nor was ASEAN originally designed or built to resolve
diplomatic rows occurring between and among non-ASEAN member states such as China.

As the Philippines, along with Japan and South Korea, struggles to shake off the perception of acting as a mere US
proxy in Asia, it will be difficult to deny that more than 7,000 American and Filipino troops were present in the
name of "war games" and "disaster response activities" held near or even at a potential theater of combat in the
Pacific. It is clear, wherever one's political perspectives may lie, that those joint military exercises were undertaken
under a post-war "mutual defense treaty" whose commitments of "mutual interests" had been reaffirmed by no less
than Secretary of State Hillary Clinton during her November 2011 visit in Manila. Dubbed as the "2 + 2" summit,
US and Philippine diplomats have planned to meet next week to discuss their next steps in pursuit of their "mutual
interests" in Asia.








SABAH
Whats happening in Sabah? A hundred fully armed Filipinos are holed up in a remote coastal town since last
Wednesday in order to press the claim of the Sultanate of Sulu and Sabah that Sabah belongs to the family of
Sultan Muhammad Fuad Abdulla Kiram, the 35th De Jure Reigning Sultan. The Sultan is also head of the Sultanate
& head of Islam in the Royal Hashemite Sultanate of Sulu and of Sabah. So we ask, are these people crazy or are
they trying to recover what the Sultan of Sulu legitimately owns?
Im glad that the Aquino regime is very cautious regarding the disturbing moves happening in Sabah these days.
After all, it recently signed a framework agreement with the Moro Islamic Liberation Front (MILF), but as we already
wrote before because they apparently left out the Moro National Liberation Front (MNLF) because they just dont like
Nur Misuari.
But since we are talking peace with the MILF, we must do the same for the MNLF despite Nur Misuari who during
the 2nd MNLF Peace Summit on May 24, 2008 in Davao City, he, before the presence of the Sultan of Sulu and
Sabah, Muhammad Fuad A. Kiram I, held a sword and vowed to work for the return of Sabah to the Royal Sultanate
of Sulu by peaceful means. So the question goes back to the hundred armed men in Sabah: are they trying to
recover Malaysia through peaceful means? That they are armed to the teeth makes us suspicious of their moves.
But if there is anything that the Aquino regime should avoid at all cost it is opening two fronts that could trigger a war
with one of our ASEAN neighbors. Its bad enough that we are having territorial problems with China in Scarborough
shoal, which they are claiming as theirs from their past history maps. Lets just hope this issue in Sabah can be
diffused peacefully. With that said, we must also go back to history on whether the claim of the Sultan of Sulu and of
Sabah is legitimate or not.
Some history books tell us that pre-Spanish Philippines were mostly inhabited by Muslims. This maybe true to most
of Mindanao, but not to Cebu. If you recall, when Ferdinand Magellans Armada de Moluccas anchored off to what is
now downtown Cebu City in 1521, he was greeted by Rajah Humabon. Ask yourselves, what country uses Rajah or
Maharajah? Muslim kings are called Datus but it was a Rajah that greeted the Spaniards because Cebu and the
Visayas was part of the Sri-Vishaya Empire, which means our Cebuano ancestors had a Hindu, not a Muslim past.
If at all weve never found any peace in Mindanao, it is due to the fact that there are just so many unresolved issues
that no one dared or cared to fix. While the Spaniards colonized much of the Philippine Archipelago, they really
didnt do well in Southern Mindanao, except in Zamboanga City.
Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1
Back in Jan. 22, 1878, Sabah then under Sultan Jamalal Ahlam Kiram of Sulu and Sabah were leased to a British
company represented by Gustavus Baron de Overbeck of Hong Kong and Alfred Dent, Esquire of London for a
princely sum (at that time) of $5,000 annually. Today Sabah under Malaysia pumps nearly one million barrels of oil
per day in Sabah, which is estimated at $75 million per day. This does not include the other things that Sabah
produces like timber, forest and agriculture products.
According to reports Ive read, Malaysia pays the heirs of the Sultan of Sulu an annual rent of $1,500, which is far
lower than what they got from the British and peanuts if you consider the income Malaysia gets from Sabahs oil
fields. No wonder, Sultan Kiram I minced no words when he insisted that The continued occupation of Sabah by
Malaysia is illegal and it must end. So the big question we ought to ask is whether we should help Sultan Kiram I
recover Sabah from Malaysia. If it is ours, then we must.
Whats more interesting for us in the Philippines is that, then Sultan Muhammad Esmail Kiram who ruled as Sultan
of Sulu and Sabah in 1947-1973, wrote and signed on Jan. 22, 1958 an Instrument of Cessation declaring the
lease to the British Company since Jan. 22, 1878 as terminated. Theres more! On April 24, 1962, Sultan Esmail
Kiram signed an instrument recognizing, admitting and accepting the ultimate sovereignty, title and dominion of the
Republic of the Philippines over their North Borneo Territory without prejudice to the proprietary rights of the heirs of
the Sultan Kiram.
On Sept. 12, 1962, the Philippines, then under President Diosdado Macapagal with Vice-President Emmanuel
Pelaez formally accepted this instrument giving Philippine sovereignty to Sabah. But on Aug. 31, 1963, Malaysia
was granted Independence by the British. So for all intents and purposes we got Sabah first before Malaysia could
be independent. So why is the Philippines ignoring this fact? That Malaysia pays its annual rent to the Sultan is
proof that the Sultans claim is legitimate. Theres more on this.




Legal basis for the Sabah claim
It has been two months since the followers of the Sultan of Sulu sailed to Sabah to reclaim it. Since then, little has
been said in the news about how the men are faring except when the police and military started attacking them in
early March. There has also been little report about the atrocities committed against them and other Filipino
Muslims, mostly Tausugs, living in Sabah although one news item remains vivid in my mind. This was about the
menfolk being ordered to run for their lives and while they ran, they were shot at the back. One can only wonder: is
the news blackout deliberate? What is the Philippine governments stand on the Sultanates claim? Does the
Philippines have basis in history and in international law for claiming Sabah?

In a booklet titled The Facts about Sabah and the Royal Sultanate of Sulu and North Borneo written by professor
Emmanuel Yap, founder of the Peoples Patriotic Movement, many questions that linger in most peoples minds are
answered. For those who want to understand the issues on Sabah and those following the developments in the
Sultanates claims, here are a few excerpts from the booklet.

How did the Sultan of Sulu acquire sovereignty and ownership over North Borneo (Sabah)? In the early 17th
century, the Sultan of Brunei ceded North Borneo to the Sultan of Sulu for having helped him quell a rebellion. Since
then, the Sultan became the effective and legal sovereign over Sabah and the Sulu archipelago. The historical ties
between Sabah and Sulu are so close that in fact, a former Chief Ministry of Sabah served as one our guerrilla
leaders in Sulu during the resistance movement in the last war.

How close is Sabah to the Philippines and to the Malaysian capital of Kuala Lumpur? The nearest distance from the
Philippine boundary to Sabah is 18 miles which is nearer than the distance from Manila to Malolos. On the other
hand, Sabah is a thousand miles away from Kula Lumpur and is not connected by any land mass to the Malayan
peninsula.

Why is the territory now in the possession of Malaysia? In 1878, as evidenced by a lease contract, the Sultan of
Sulu leased the territory to Australian Gustavus Baron de Overbeck who, together with his British partner, Alfred
Dent, paid the rentals to the Sultan. When they ran out of money they organized the British North Borneo Company
which continued to pay the rentals until 1946. The agreed annual rentals was initially 5,000 Mexican dollars and/or
British pounds but increased to 5,300 in 1903. Then on July 14, 1946, just after the Philippines had gained its
independence from the US, Britain annexed Sabah as part of its dominion. Still, Britain continued to pay the rentals
to the Sultanate. In 1963, the British government turned over Sabah to Malaya to become part of the new Federation
of Malaysia. Since 1963 the Malaysian government through its embassy in Manila has been the one paying rentals
to the Sultanate.

Why does Malaysia say that what it has been paying is not rentals but cession money? The lease contract of 1878
between the Sultan of Sulu and Overbeck was in the Malay language but written in Arabic. The contract was called
in Arabic as Padjak which means lease and described in contemporary Spanish documents as Arrendamiento
which also means lease. This document has been translated by a Dutch scholar, an American scholar and by
Spanish scholars. All these authoritative translations translated Padjak as lease. The British, on the other hand,
had its own version. They simply referred to it as cession.

Was there any subsequent acknowledgment of the Sultans continuing sovereignty in Sabah by the British North
Borneo Company? Yes. In 1903, the British North Borneo Company asked the Sultan to execute a confirmatory
deed to confirm the lease agreement in consideration of the increase in rentals beginning that year.

When the British government annexed Sabah in 1946 did it not acquire sovereignty over it as against the Sultan of
Sulu and consequently, the Philippines? No, because it acquired Sabah from the British North Borneo Company
which did not exercise sovereignty over the territory. Britain could not have acquired a better right than the company
which was only a lessee. Therefore, it had no power to give (to Malaysia) what it did not own. Thus, Malaysia did not
acquire sovereignty over Sabah either.

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.

So, has the Philippines laid claim on Sabah? Yes. On Septemebr 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. These, together with how Malaysia has reacted, will be
discussed in the next article in this column.

An Outline of the Philippine Claim to Sabah
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. Malaysias 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 Highnessand 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 latters 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 Hudsons 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 Majestys 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 Glanvilles position, Julian Pauncefote, assistant permanent undersecretary of the British Foreign
Office, declared: We must be carefulto preserve the Sultans 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.)
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 companytransfers 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 Majestys 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
Majestys 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 Malaysias 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 Britains 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
meansof 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.)
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 Malaysias 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 communiqu, 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? Malaysias answer was unqualifiedly in the affirmative.
6.6. In August 1968, again in a joint communiqu, 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 Malaysias
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.