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Home , Borneo, Sabah, Sultanate of Sulu, Sulu archipelago

103

International Law and the Dispute

By GEOFFREY MARSTON SENIOR LEcrURER IN LAW, AUSTRALIAN NATIONAL UNIVERSITY, CANBERRA "If supported by the occasional presence of a gun-boat, I think the proposed Company would not have much difficulty with the natives, many of whom tcould welcome British rule." Acting Consul-General Treacher to the Earl of Derby, ,2 January 1878. On 18 September 1968 the Philipfine President signed a Con• gressional Bill for the demarcation 0 the Philippine territorial which in its terms assumed Philippine sovereignty over the Malaysian of Sabah. This assumption was described by the Prime Minister of as "a violation of Malaysian sovereignty and territorial integrity, and as such is a highly provocative act tantamount to aggression". [1] Thus began another stage in the history of strained relations between the two States over title to Sabah. The current dispute, which has been aggravated by economic and political factors, nevertheless has its origins in events which give rise to highly complex issues of international law. [2] It is proposed to set out in a compressed form the legal arguments of both sides and then to assess the position in international law, although in an article of this length it is impossible to do more than to outline some of the multitude of difficult issues which would be r.aised if the dispute were ever submitted to an international judicial tribunal. The Philippine eaSe[3] The Philippine Government maintains that the part of northern which is now called Sabah was at all material times under the territorial sovereignty of the Sultanate of , an entity once recog-

1 See Times, 19 September 1968, p. 5. 2 Much of the diplomatic history of is contained in the Con• fidential Print of the Foreign Office (referred to in this paper as Conf.) particularly in the set filed in the Public Record Office, London, as FO 572 (Borneo and Sulu). This set is made up of 30 volumes each bearing a separate Conf. number. Another set containing relevant material is FO 834 which is made up of the annual prints of opinions given to the Foreign Office by the law officers of the Crown. An incomplete set of the Foreign Office Confidential Print to 1913 is located in the National Library of , Canberra. 3 See Philippine Claim to North Borneo, vol. I, , Bureau of Printing (1963); vol. 11 (1968'); "Selected Documents relating to the Philippine Claim to North Borneo" (1963),2 Philippine International Law Journal, pp. 216- 339; ibid., Sumalong (pp. 6-17), an article critical of the Philippine claim; Note 3 continued on p. 104. 104 AUSTRALIAN INTERNATIONAL LAW nized by the Family of Nations as possessing international legal personality. The Sultanate was based in the , a group of which lies to the east of Sabah, and which is now part of the Philippine Republic. On 22 January 1878 the of Sulu executed a document which granted certain concessions to two indi• viduals-Baron de Overbeck, an Austrian national, and Alfred Dent, a British national-in consideration of an annual payment to the Sultanate of 5000 Mexican dollars, the currency of the area at that time. According to the Philippine Government, this transaction was a lease, not a , and in any case these individuals, being private persons, could not have acquired sovereignty for themselves or for Britain over the area involved in the transaction. Neither was the British North Borneo Company (to which Dent, who had purchased Overbeck's interest, later transferred his rights) authorized to acquire, nor did it acquire territorial sovereignty over the area, which the British Government continued to declare was still under the terri• torial sovereignty of the . Neither did Spain ever acquire territorial sovereignty over the area, so it could not have effectively renounced sovereignty in favour of Britain as it purported to do by an agreement concluded in March 1885.[4) The British Crown, the Philippine Government alleges, could not have acquired territorial sovereignty over the area in 1946 by virtue of the Agree• ment[5) with the British North Borneo Company followed by the North Borneo Cession Order[6) because the British North Borneo Company did not have such sovereignty to transfer. Therefore the Crown could not have transferred territorial sovereignty over the area to the of Malaysia as it purported to do by the Agreement Rdating to Malaysia signed on 9 July 1963.[7)

3-continued Salonga (pp. 18-28); Alafriz (pp. 78-99); Africa (pp. 388-409); Ortiz, "The North Borneo Question" (1963), 11 Philippine Studies, pp. 18-64. See also Philippine statements in the United Nations' 4th Committee in December 1962 (A/C.4/SR.1420, pp. 14-16) and in the General Assembly in October 1968 (A/PV 1696, 1707). For non-partisan accounts of the dispute see Leifer, The Philippine Claim to Sabah (1968), Hull Monograph on S.E. , No. 1; Meadows, "The Philippine Claim to North Borneo" (1962), Political Science Quarterly, pp. 321-35; Tregonning, "The Claim for North Borneo by the " (1962), 16 Australian Outlook, pp. 283-91; Garner, The Philippine Claim to North Borneo (1965) (unpublished Ph.D. thesis of the Fletcher School of Law and Diplomacy); Rousseau, "Chronique des Faits Internationaux" (1962), 66 R.G.D.I.P., pp. 806-23. The fullest historical monograph on Sabah is Tregonning, Under Chartered Company Rule (1958). See, more generally, Irwin, Nineteenth Century Borneo; A Study in Diplomatic Rivalry, (1955); Runciman, The White Raiahs (1960). Note also Paras, "Some Legal Questions on our Sabah Claim" (1969), 16 Far Eastern Law Review, pp. 409-25, which contains valuable documentary material. 4 For its text, see 76 B.F.S.P., p. 58. 5 Agreement for the transfer of the Borneo Sovereign Rights and Assets from the British North Borneo Company to the Crown, 26th June 1946. (For its text, see Philippine Claim, pp. 129-138.) 6 For its text, see 146 B.F.S.P., pp. 173, 174. 7 For its text see Cmnd. 2094; (1963), 2I.L.M., p. 816.