Part 1 By Ado Paglinawan
The Americans got us so busy with their wars and the West Philippine Seas, we forgot about our territory south of the Sulu Archipelago.
On January 2, 1930 the United States made sure North Borneo will not be in our consciousness when they signed with their cousins the British, the Convention Treaty.
The Convention was an agreement between the governments of the United Kingdom and the United States to definitely delimit the boundary between North Borneo (then a British protectorate) and the Philippine archipelago (then a U.S. Territory).
This is the third colonial treaty that defines the territorial boundaries of the Philippines:
More familiar are first, the Treaty of Peace Between the United States of America and the Kingdom of Spain, on December 10, 1898, known as Treaty of Paris; and second, the Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines on November 7, 1900, known as the Treaty of Washington.
From the top of its pyramid, the United States knew very well what it should do so it doesn’t lose control of its former colonies. Those below only sees what the Americans want us to see rendering us blindsided to geopolitical implications, mostly the ones with long term effects.
In an effective way, the Convention Treaty of 1930 drew a curtain so that there were almost no one besides the Americans, the British and the Sultanate who could have possibly weighed whatever disadvantages to the Philippines the colonials have prepositioned.
I learned from the book Macapagal the Incorruptible by Quentin Reynolds and Geoffrey Bocca, that Vice President and Foreign Secretary Elpidio Quirino had just taken his oath of office succeeding President Manuel Roxas after the latter suffered a heart attack on April, 1948, when he summoned Diosdado Macapagal to represent the country in the transfer of the Turtle Islands from Great Britain to the Philippines.
The book said “The Turtle Island had been (part of a lease) to the British North Borneo Company by the Sultan of Sulu in 1878 and had never been part of the British Empire… lack of British influence (in the Philippines) created a serious psychological hiatus…All the Philippines knows about the British have come from the United States in an image filtered from East Coast to West Coast.
“Fearful tales of the diabolical cunning of the British at the conference table had been handed down to the Filipinos by the Americans for two generations. Quirino had personal reasons for distrusting the British.”
Quirino had gone to London in 1947 to negotiate a treaty of mutual friendship. The British sent a minor official to deal with him. As vice-president, Quirino feeling this was an insult, walked out.
But in Sandakan, North Borneo, the British negotiator received Macapagal with equity, and soon the Union Jack was lowered and the flag of the Philippine Republic was victoriously hoisted in its place in the Turtle Islands.
In the ensuing discussions, however, Macapagal went deeply into the legal history involving the Turtle Islands and it was only then that the Philippine side became aware that the Sultan of Sulu has leased North Borneo to Baron de Overbeck and Alan Dect, who were British citizens, for a pittance of an annual rental then equivalent to five thousand three hundred US dollars, as padjak or lease.
The British knew the heirs of the Sultan were Filipinos. But the British has precisely schemed earlier with the Americans on what to do with North Borneo as they conspired in the Convention Treaty as early as 1930, so sixteen years after in 1946, the British government annexed the territory despite the fact that it was a commercial transaction.
Macapagal found the hard way that North Borneo, like the Turtle Islands, are historically and legally part of the Philippines but he could not do anything about it until after his election as president in 1961. So, in June 1962 he filed an Aide Memoire addressed to the United Kingdom as successor-in-interest of the Sultanate of Sulu.
Initial diplomatic gains and upset
Since then, there have been a lot of hemming and hawing.
President Macapagal tasked his vice-president and concurrent foreign affairs secretary Emmanuel Pelaez to move diplomacy forward to pursue the claim. Ingeniously laid-out legal and historical bases were submitted to the United Nations General Assembly.
A conference was held from June 7 to 11, 1963 in Manila among the foreign ministers of Indonesia, Malaysia and the Philippines that came out with the Manila Accord of 1963. The Accord provided that the inclusion of North Borneo and the “State” of Sabah in the Federation of Malaysian States was subject to and would not affect international law and the principle of peaceful settlement of disputes.
The three countries also agreed to settle the claim in a just and expeditious manner through negotiation, conciliation, arbitration, judicial settlement, or any peaceful means the parties would choose in conformity with the UN Charter and the Bandung Declarations.
Meanwhile Malaysia assumed the colonial lease obligations from the British but converted it to only 5,300 Malaysian ringgits.
The next public milestone would be Senator Benigno Aquino’s hoax exposing an alleged “Jabidah massacre” concerning an alleged murder in Corregidor Island on March 18, 1968 of twenty-four Tausug recruits purportedly being trained by the Philippine military to infiltrate Sabah and foment an uprising there against the Malaysian government.
Aquino would later discredit his own report in the floor of the Senate, but an unintended horrible consequence – this would unsettle the Malaysians giving them the casus belli to fund, train and support Nur Misuari’s Moro National Liberation Front, actually a secessionist uprising in Mindanao, whose ramifications are still unsolved to this day and age.
For one, the Tripoli Agreement between the Philippine government and the MNLF, still has to be correctly enforced. But that is another matter altogether.
Lahad Datu Reset a New Turn of Events
The next important development occurred on February 11, 2013 when 235 Tausug militants, some of whom were armed, arrived by boats in Lahad Datu, Sabah, Malaysia from Simunul island, Tawi-Tawi in the southern Philippines. The group, calling themselves the “Royal Security Forces of the Sultanate of Sulu and North Borneo”, was sent by Jamalul Kiram III, one of the claimants to the throne of the Sultanate of Sulu.
Kiram stated that their objective was to assert the unresolved territorial claim of the Philippines to eastern Sabah (the former North Borneo). Malaysian security forces surrounded the village of Tanduo in Lahad Datu where the group had gathered. Known as the “Lahad Datu standoff” it saw a total of 68 deaths – 56 from the Sulu sultanate, nine from the Malaysian authorities and six civilians.
Piqued by the standoff, the Malaysia unilaterally terminated the colonial agreement it assumed from the British and stopped rental payments to the Sultanate of Sulu in 2013.
On April 28, 2017, the Sulu claimants wrote to Malaysia to seek renegotiation of the 1878 deal, which they said was now “unbalanced” after rich natural resources were found in Sabah.
The Sulu claimants said the “game-changing” discovery of petroleum gave Malaysia massive revenue which could not be foreseen when the 1878 deal was signed, and said such revenue for Sabah was about 20 million times more than the RM5,300 annual sum.
Malaysia did not respond to this letter.
On November 2, 2017, eight individuals — Nurhima Kiram Fornan, Fuad A. Kiram, Sheramar T. Kiram, Permaisuli Kiram-Guerzon, Taj-Mahal Kiram-Tarsum Nuqui, Ahmad Nazard Kiram Sampang, Jenny K.A. Sampang, Widz-Raunda Kiram Sampang — began their bid as heirs of the Sulu sultan to enforce the lease.
They are the genuine descendants of the nine heirs to the Sultanate of Sulu that have been officially designated by Brigadier Charles Frederick Cunningham Macaskie CMG, the first Chief Justice of North Borneo in a 1939 decision by the British High Court in Sandakan.
Basically, they wanted Malaysia to pay them more than the RM5,300 sum agreed back in 1878 and 1903 by the Sulu sultans for the lease of Sabah.
They served official notice informing the Malaysian Embassy in Madrid, Spain of their intention to start an arbitration. They applied on February 1, 2018 for the Spanish courts to appoint an arbitrator. The High Court in Madrid on March 29, 2019 agreed to appoint an arbitrator, and on May 22, 2019 appointed Gonzalo Stampa as the sole arbitrator.
On July 30, 2019, the eight claimants filed their notice of arbitration, seeking for the 1878 deal’s rebalancing and for compensation which would “more fairly” reflect its value. Alternatively, the eight claimants wanted the 1878 agreement to be terminated and for Malaysia to pay compensation, if the deal is not rebalanced.
In a statement of claim filed on June 20, 2020, the eight claimants claimed as much as US$32.2 billion from Malaysia if the 1878 agreement was terminated.
A Financial Times report while bullish that Malaysia would prevail, said the legal fight will require a lot of resources:
“It’s a matter of how much Malaysia is willing to settle for or will they fight in every jurisdiction where [the Sulu heirs] could file a seizure of assets.”