[OPINION | Just Saying] Sabah and the West Philippine Sea are ours

Sabah and the West Philippines Sea are ours. It is the Duterte administration’s constitutional and moral duty to assert our country’s rights, honor, and dignity. 

Let us look at Sabah first. In 1704, the Sultan of Brunei gifted Sabah to the Sultan of Sulu in gratitude for the latter’s assistance in quelling a rebellion in Brunei. In January 22, 1878, the Sultan of Sulu entered into a Deed of Lease with Gustavus Baron de Overbeck and Alfred Dent over Sabah. They founded the British North Borneo Company (BNBC) which was granted a charter by the British Government. Subsequently, BNBC assigned the lease contract to the British Empire.

In July 10, 1946, the British Empire took over Sabah – essentially an illegal  land-grab by a colonizer. In 1962, retaining certain proprietary interest in Sabah, the Sultan of Sulu ceded its sovereignty to the Philippine government with an urgent request to recover Sabah. Subsequently in 1963, the British Empire gave independence to Malaysia. The grant included Sabah.

Malaysia claims that the 1878 Deed was a sale and hence confers ownership rights to the British as an assignee of BNBC. Consequently, when Malaysia was granted independence, the latter acquired Sabah by state succession. This is baseless.  

The deed is clear. It specifically provides that the Sultan of Sulu and his heirs and successors “do hereby desire to lease of our own free will and satisfaction, to Gustavus Baron de Overbeck of Hongkong, and to Alfred Dent, Esquire, of London, who act as a representative of a British Company, together with their heirs, associates, successors, and assigns forever and until the end of time, all rights and powers which we possess over territories and lands tributary to us on the mainland of the Island of Borneo...(description of Sabah)”

Also, the contract expressly provided that $5,000 annually was to be paid  “in consideration of the territorial lease.”

The word “lease” was reiterated  in another paragraph as follows: “The abovementioned territories are from today truly leased to Gustavus Baron de Overbeck and to Alfred Dent, Esquire,as already said...but the rights and powers thereby leased shall not be transferred to another nation without the consent of His Majesty’s Government.”

The repeated reference to a “lease” highlights that ownership over Sabah was still with the Sultan of Sulu, with a clear condition that any lease-transfer required the approval of “His Majesty’s Government,” clearly referring to the Sulu Sultanate. The original Arabic contract used the word  “pajak,” meaning “lease.” Surely, Von Overbeck and Dent, seasoned merchants, would not have agreed to any wording not reflecting the intent of the parties.  

Simply, the Philippines’ claim is based on cession and historic titles originally belonging to the Sultan of Sulu. Both modes of acquisition are accepted in international law. 

Malaysia’s claim is based on a land-grab by the British Empire from an original lease contract assigned by  BNBC to the same. Under international law, both cannot be the basis of ownership.

As to the West Philippine Sea, the Hague Permanent Court of Arbitration decision upholding comprehensively the Philippine’s contention against China in relation to the United Nations Convention on the Law of the Sea (UNCLOS) ruled:  

“[T]hat, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention; and further DECLARES that the Convention superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein.”

That was the dispositive portion that sustained the Philippines’ legal assertions over its islands and 200-nautical mile economic zone privileges. The landmark decision significantly recognized China’s destruction of the maritime life in the disputed areas. It should have put a stop to China’s expansionist designs in Southeast Asia had the Duterte administration immediately worked hard to obtain an international consensus to pressure China to abide by the decision. That would not have been difficult considering that the European G7 Members, the United States, Australia, New Zealand, Japan, India, and many Southeast Asian countries hailed the decision and admonished China to obey it.  

However, the Duterte administration has a different approach. For many, it was one of timidity and appeasement perplexingly by a victorious country. The posturing of China continues to be menacing. There are reports that missiles have already been placed in some islands. Reclamations and fortifications have been made. The situation is nothing less than alarming. 

But still President Duterte, the chief architect of the country’s foreign policy, made a public unilateral pronouncement that he was useless in the WPS issue. This national declaration was made in his latest State of the Nation address in an official constitutional proceeding in front of the country's  representatives and senators  and, online, possibly witnessed by the Supreme Court Justices and the members of the diplomatic corp. 

Undoubtedly, China has changed track. If it cannot beat the Philippines illegally, it will try to defeat the Philippines "legally." Now it has undertaken a patient and calculated series of seemingly conciliatory gestures where even the Philippine head of state participates. China might assert that, even if the Hague decision were valid, it has become functus officio based on "generally accepted principles of law recognized by civilized nations" such as the doctrine of estoppel, head of state unilateral declarations, the  decision’s abandonment, and novation and waiver exhibited by acts and omissions, express and/or implied, of the Philippine government despite its  protestations.  

President Duterte might be falling into the trap by giving China the evidence it desperately needs. The administration must be intelligent to know this and see the ulterior motives of China’s congeniality.  

There is a little ray of hope though. Regarding Sabah, Foreign Affairs Secretary Locsin twitted: "Sabah is not in Malaysia if you want to have anything to do with the Philippines.” Malaysia Foreign Affairs Minister Hishammuddin Hussein described it as irresponsible. Perhaps the said minister should intently read the 1878 Deed of Lease. He will be  enlightened.

As to China, Secretary Locsin said: “Unless something happens, as I said before, that is beyond incursion and in fact is an attack on, say, a Philippine vessel, in which case then I call up Washington DC.” But even if nothing has yet happened, assertive actions must be made such as bringing China’s illegal acts to the attention of the United Nations General Assembly as strongly suggested by former Foreign Secretary Albert Del Rosario and former Supreme Court Justices Antonio Carpio and Conchita Morales Carpio. 

It is time to bring back the dignity and pride the Filipino nation deserves.  My unsolicited counsel to the President is to listen to his critics. They may be his best advisers in finding a solution to our international problems. He must allow himself to be guided by democratic values in solving the problem. Only in considering – not necessarily totally acceding – to the opposite view can ideas can be opened up and a rational decision achieved. – Rappler.com

Mel Sta Maria is dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.