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North Borneo dispute refers to the status of northeastern part of the state of Sabah in Malaysia. Sabah was previously known as North Borneo prior to the formation of the Malaysian federation in 1963. The Philippines through the heirs of the defunct Sultanate of Sulu claim the northeastern part of Sabah as part of their territory on the basis that that part of Sabah was leased only to the British, which was the colonial power in North Borneo in the late 19th century.

Contents

Lease

After Sultan Pulalun signed the Spanish Protocol treaty giving Spain pretensions of sovereignty over Jolo and its dependencies, on 23 January 1878, in exchange for modern weapons with which to keep Spanish colonizers away from the Sulu Archipelago, the ruler of Sulu, Sultan Jamalul Alam, leased the territory of North Borneo to Gustavus von Overbeck, an Austrian who was then the Austro-Hungarian Empire's consul-general in Hong Kong. This was accomplished via a trading company belonging to von Overbeck's British partner Alfred Dent, and later via the British North Borneo Company. Von Overbeck happens to have had the necessary firearms aboard their ship, HMS America for use on their intended British North Borneo Company, and also paid the Muslim dignitary an annual sum equivalent to 5,000 Malaysian dollars (now known as ringgit). Being dusk, Jamalul Alam (Agdam) agreed that the firearms shall be offloaded from the ship the next morning. However, Overbeck and the ship HMS America departed that midnite bringing with it the Lease Treaty Agreement.

The key word in the agreement was "pajak," which has been translated by American, Dutch and Spanish linguists to mean "lease" or "arrendamiento." The agreement further states explicitly that the rights to the territory may not be transferred to a nation or another company without the sultan's express permission.

Madrid Protocol

The Sulu Sultanate later came under the control of Spain in Manila. In 1885, Great Britain, Germany and Spain signed the Madrid Protocol to cement Spanish influence over the islands of the Philippines. In the same agreement, Spain relinquished all claim to North Borneo which had belong to the Sultanate in the past.[1]

Philippine Claim

In 1906 and in 1920, the United States formally reminded Great Britain that North Borneo did not belong to the Crown and was still part of the Sultanate of Sulu. However, the British did turn Sabah into a Crown leased Colony.[2]

The Philippine Constitution of 1941 states that the national territory of the Philippines included, among other things, "all other areas which belong to the Philippines on the basis of historical rights or legal claims." Malaysia was federated in 16 September 1963. Even before Sabah was incorporated into Malaysia, the Philippines sent delegations to London reminding the British Crown that Sabah belonged to the Philippines. [3]

The Sultanate of Sulu was granted the north-eastern part of the territory as a prize for helping the Sultan of Brunei against his enemies and from then on that part of Borneo was recognized as part of the Sultan of Sulu's sovereignty. In 1878, Baron Von Overbeck, an Austrian partner representing The British North Borneo Company and his British partner Alfred Dent, leased the territory of Sabah. In return, the company was to provide arms to the Sultan to resist the Spaniards and 5,000 Malayan dollars annual rental based on the Mexican dollar's value at that time or its equivalent in gold. This lease was continued until the independence and formation of the Malaysian federation in 1963 together with Singapore, Sarawak and the states of Malaya. As of 2004, the Malaysian Embassy to the Philippines had been paying cession/rental money amounting to US$1,500 per year (about 6,300 Malaysian Ringgits) to the heirs of the Sultanate of Sulu.[4]

The contract between Sri Paduka Maulana Al Sultan Mohammad Jamalul Alam, representing the sultanate as owner and sovereign of Sabah on one hand, and that of Gustavus Baron de Overbeck and Alfred Dent representing the North Borneo Company, on the other as lessees of Sabah, was executed on January 22, 1878. The Lease prohibits the transfer of Sabah to any nation, company or individual without the consent of His Majesty’s Government (“Government of the Sultan of Sulu”).[5] Although it is mentioned to be a permanent lease, it is contrary to international law, which states that the terms for a lease contract can be for only 99 years, as in the case of Hong Kong and Macau when these were leased to Great Britain and Portugal respectively, by China and subsequently returned after the expiration of the lease. This would make the lease on Sabah overdue by 130 years.

Less than a decade later, the Sultanate of Sulu came under the control of Spain and was forced to sign a document giving all of the Sultan's Properties in Palawan and Sulu (excluding Northern Borneo) to Spain. In 1885, Spain relinquished all of its claim to Borneo to the British in the Madrid Protocol of 1885.[6]

In spite of that, in 1906 and 1920 the United States formally reminded Great Britain that Sabah did not belong to them and was still part of the Sultanate of Sulu on the premise that Spain never acquired sovereignty over North Borneo to transfer all its claims of sovereignty over North Borneo to Great Britain on the Madrid Protocol of 1885. This is so because the Sultan of Sulu did not include his territory and dominion in North Borneo in signing the treaty of 1878 recognizing the Spanish sovereignty over “Jolo and its dependencies.” North Borneo was never considered a dependency of Jolo. However, the British Government ignored the reminder and still annexed the territory of North Borneo as a Crown Colony on July 10, 1946. This was in spite of the fact that the British Government was aware of the decision made by the High Court of North Borneo on December 19, 1939, that the successor of the Sultan in the territory of Sabah was the Government of the Philippine Islands and not Great Britain.[7]

On September 12, 1962, during President Diosdado Macapagal's administration (the father of Philippine president, Gloria Macapagal-Arroyo), the territory of North Borneo, and the full sovereignty, title and dominion over the territory were ceded by the then reigning Sultan of Sulu, HM Sultan Muhammad Esmail E. Kiram I, to the Republic of the Philippines.[8] The cession effectively gave the Philippine government the full authority to pursue their claim in international courts. The Philippines broke diplomatic relations with Malaysia after the federation had included Sabah in 1963. It was revoked in 1989 because succeeding Philippine administrations have placed the claim in the back burner in the interest of pursuing cordial economic and security relations with Kuala Lumpur.[9] To date, Malaysia continues to consistently reject Philippine calls to resolve the matter of Sabah's jurisdiction to the International Court of Justice.[10]

Formation of Malaysia

In the years immediately before the formation of Malaysia, two commissions of enquiry visited North Borneo (along with neighbouring Sarawak) in order to establish the state of public opinion there regarding merger with Malaya (and Singapore).

It is important to note that neither commission was mandated with addressing the legal status of North Borneo; neither were they 'referendums' in the proper sense. The first commission, usually known as the Cobbold Commission was established by the Malayan and British governments and was headed by Lord Cobbold, along with two representatives of Malaya and Britain (but not either of the territories under investigation). The Commission found that 'About one third of the population of each territory [i.e. of North Borneo and of Sarawak] strongly favours early realisation of Malaysia without too much concern over terms and conditions. Another third, many of them favourable to the Malaysia project, ask, with varying degrees of emphasis, for conditions and safeguards... The remaining third is divided between those who insist upon independence before Malaysia is considered and those who would strongly prefer to see British rule continue for some years to come' [11].

Indonesia and the Philippines rejected the findings of the Cobbold. In 1963, a tripartite meeting was held in Manila between Indonesian president Soekarno, Philippines president Diosdado Macapagal and Malayan Prime Minister Tunku Abdul Rahman. The meeting agreed to petition the UN to send another commission of enquiry and the Philippines and Indonesia agreed to drop their objection to the formation of Malaysia if the new commission found popular opinion in the territories in favour. The UN Mission to Borneo was thus established, comprising members of the UN Secretariat from Argentina, Brazil, Ceylon, Czechoslovakia, Ghana, Pakistan, Japan and Jordan. The Mission's report, authored by UN Secretary-General U Thant found ‘a sizeable majority of the people' in favour of joining Malaysia. Although Indonesia and the Philippines subsequently rejected the report's findings – and Indonesia continued its semi-military policy of konfrontasi towards Malaysia – the report in effect sealed the creation of Malaysia.

Further claim

In 1939, a court judgment on the claim as private heirs had handed ownership of North Borneo to the heirs of the Sultanate before the formation of Malaysian federation in 1963. The judgment of Chief Justice C.F.C. Makaskie of the High Court of North Borneo in the civil suit filed by the late Dayang Dayang Hadji Piandao and eight other heirs of the Sultan of Sulu, including the famous Putlih (Princess) Tarhata Kiram, upheld the validity of the claim of the heirs as private heirs.[12]

Developments

Sabah's position within Malaysia was reinforced by the ruling made by the International Court of Justice for Pulau Sipadan and Pulau Ligitan to remain under the jurisdiction and sovereignty of Malaysia rather than Indonesia. However, Malaysia continues to consistently reject Philippine calls to bring the matter of Sabah's jurisdiction to the ICJ.

References

  1. ^ Protocol of 1885. Sabah Law. Extracted June 3 2008
  2. ^ http://www.royalsulu.com/issues.htm
  3. ^ http://www.nzz.ch/english/background/background2000/background0001/bg000122sabah.html
  4. ^ [1], Cession Money/Rental Money Year 2003/2004 From Malaysian Embassy in the Philippines. Accessed August 10, 2008.
  5. ^ [2], The Deed of Sabah Lease of 1878 Accessed March 1, 2008.
  6. ^ Protocol of 1885. Sabah Law. Extracted June 3, 2008
  7. ^ [3], Instrument of Cession of the Territory of North Borneo to the Republic of the Philippines. (7th "whereas" clause). Accessed March 1, 2008.
  8. ^ [4], Sabah Transfer of Sovereignty From the Sultanate of Sulu to the Republic of the Philippines. Accessed March 1, 2008.
  9. ^ [5], Come clean on Sabah, Sulu sultan urge gov't. Accessed March 1, 2008.
  10. ^ [6], Philippines' Claim To Sabah. Accessed February 28, 2008.
  11. ^ Report of the Commission of Enquiry: North Borneo and Sarawak, 1962, HMSO, 1962
  12. ^ http://www.guide2womenleaders.com/Philippines_Substates.htm

External links

See also

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