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Was Sulu Sultan’s Questionable 1962 Cession of Sabah to the Philippines Valid?

March 10, 2013

The ongoing dispute between the pretentious Sulu sultanate and the Malaysian government has triggered a lot of Filipino ‘nationalists’ to call for the revival of the Philippine government’s territorial claim on Sabah, also known as North Borneo.

These Filipinos, who have been urging the Aquino administration, to protect our national and territorial interests contend that the Philippines is the rightful owner of the disputed territory as evidenced by then Sultan Mohammad Esmail Kiram’s cession and transfer of North Borneo to the Filipino government.

True enough, the Sulu sultanate ceded the territory to the Philippines on April 24, 1962 (during the term of former President Diosdado Macapagal). The cession agreement is titled: “Cession and Transfer of the Territory of North Borneo by His Highness, Sultan Mohammad Esmail Kiram, Sultan of Sulu, Acting with the Consent and Aprroval of the Ruma Bechara, in Council Assembled, to the Republic of the Philippines.”

Part of the agreement states:

“The Territory of North Borneo, and the title of sovereignty and dominion over the said Territory are hereby ceded and transferred by His Highness, Sultan Mohammad Esmail Kiram, Sultan of Sulu, acting with the consent and approval of the Ruma Bechara, to the Republic of the Philippines.”

But– there’s a big BUT… here’s very simple question that should interest legal luminaries and international law experts: Is the act of cession by the Sulu sultanate in 1962 valid when it totally lost its “temporal sovereignty” in 1915? 

First, what is cession? Cession is defined as “the transfer of sovereignty over state territory by the owner state to another state” (Verma, 2004, p.119). Cession is known in international law as an important attribute of sovereignty. This means that only a sovereign state can have the power to acquire territory or cede a part of its territory in favor of another sovereign state.

Here are other definitions of cession:

  1. “Cession is a transfer of sovereignty over state territory by agreement, normally a treaty, from one state to another, and in this sense constitutes a “derivative” mode of acquisition of territory by a state through a formal procedure for changing the title to territorial sovereignty” (Boczek, 2005, p.209).
  2. Cession of state territory is the transfer of sovereignty over state territory by the owner-state to another state” (Oppenheim & Roxburgh, 1920, p.376).
  3. By cession is meant the relinquishing by a state of its sovereignty over some of its territory to another state through an agreement between both (Al Abed & Hellyer, 2001, p.188).

For an act of cession to be valid, or to be considered an official, governmental act of transferring sovereignty, the following requisites must be present (Al Abed & Hellyer, 2001, p.188):

  • The owner state must actually exercise legal  and full sovereignty over the territory to be ceded.
  • The act of cession or agreement must not have been induced by threat of force. It must take place willingly and peacefully.
  • Its object must be sovereignty over the territory to be ceded.

On the other hand, sovereignty is defined as “the absolute and perpetual power of a commonwealth” (Bodin & Franklin, 1992, p. 345).

For the sake of this discussion let’s just ignore or set aside the acts of cession made by the Sulu sultanate to a number of foreign entities over a hundred years ago. Let’s just focus on the cession made by Sultan Mohammad Esmail Kiram in 1962.

Is it valid? Did Kiram exercise sovereignty over the territory in question in 1962? Or: did the Sulu sultanate have sovereign power, full or temporal, before or during the cession?

If we try to look at the history of the Sulu sultanate, we’d find that it totally lost its ‘temporal sovereignty’ in an agreement with the U.S. government in 1915.

An agreement between Governor of the Department of Mindanao and Sulu (Frank W. Carpenter) and the Sultan of Sulu (Hadji Mohammad Jamalul Kiram) dated March 22, 1915 shows that the latter voluntarily relinquished his “temporal sovereignty”.

The Carpenter agreement states:

WHEREAS, the Sultan of Sulu is the titular spiritual head of the Mohammedan Church in the Sulu Archipelago with all the-Mohammedan rights and privileges which under the government of the United States of America may be exercised by such an ecclesiastical authority and subject to the same limitations; which apply to the supreme spiritual heads of all other religions existing in American territory, including the right to solicit and receive voluntary popular contributions for the support of the clergy rites and other necessary lawful expenses of an ecclesiastical character;

The Sultan of Sulu on his own account and in behalf of his adherents in the Sulu Archipelago and elsewhere within American territory without any reservation or limitation whatsoever, ratifies and confirms his recognition of the sovereignty of the United States of America, and the exercise by His Excellency the Governor-General and the representative of that government in Mindanao and Sulu of all the attributes of sovereign government that are exercised elsewhere in American territory and dependencies including the adjudication by government courts or its other duly authorized officers of all civil and criminal causes falling within the laws and orders of the Government.

However, some scholars hold the view that while the sultan voluntarily surrendered his sovereignty over his territory in the Philippines, he still retained his sovereign power over North Borneo.

But how is that possible when the Sulu sultan lost all his political powers and was reduced to a mere “ecclesiastical authority” and “spiritual head of the Mohammedan Church in the Sulu Archipelago”?

Is it possible for a defunct sovereign to be a floating or wandering political power without any known or acknowledged sovereign territory?

Also, since the Sulu sultanate totally lost its sovereignty in 1915, and since Esmail Kiram purportedly ceded Sabah to the Philippines in 1962, how could self-proclaimed sultan Jamalul D. Kiram III now claim that the disputed territory is his personal private property?

Is there any established principle or doctrine in international law that would support Kiram III’s personal ownership claim on Sabah? The self-proclaimed sultan has been claiming that Sabah is his private property. Kiram III’s outrageous assertion makes him the shrewdest, craftiest and trickiest defunct, dethroned royalist of the 21st century.

Here’s what makes Kiram III the most manipulative political usurper of our time– he’s trying to convert a lost sovereignty into his personal property!

Also, observe that the self-proclaimed sultan, who’s just one of the many claimants to the sultanate, could not even state that Sabah is part of the territory of the Philippines. In fact on Feb. 12, 1989, he unilaterally revoked the resolution of August 1962 regarding the cession of Sabah  to the Philippine government. Plus, how could Kiram III revoke the cession agreement when he didn’t have sovereignty? Did both Kirams (the ceding and the revoking) enjoy and exercise absolute, perpetual political power to govern?

I urge you to connect the dots before throwing your support behind the self-proclaimed and warmongering sultan or rallying behind the growing Reclaim Sabah movement in the country.

  • Cited sources:

Al Abed, I & Hellyer, P. (2002). United Arab Emirates: A New Perspective. Trident Press Ltd.

Bodin, J. & Franklin, J. (1992). Bodin: On Sovereignty. Cambridge: Cambridge University Press.

Boczek, B. (2005). International Law: A Dictionary. Scarecrow Press.

Oppenheim, L. & Roxburgh, R. (1920). International law: A Treatise. The Lawbook Exchange Ltd.

Verma, S.K. (2004). Introduction to Public International Law. PHI learning.

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