The right to North Borneo

Angaindrankumar Gnanasagaran
2 February 2018

Map showing area of the Philippine claim of Sabah submitted to the International Court of Justice (ICJ) in 2001 and
the historical extent of the Sulu Sultanate.

Sabah, located in the northern half of the island of Borneo has been at the centre of a diplomatic
row between Malaysia and the Philippines – which claims much of its eastern half – since the early
1960s. Currently, Sabah remains under the sovereignty of Malaysia and the matter has laid dormant
for many years.
But it has since resurfaced.
The recent question of Sabah’s sovereignty comes in light of a proposed shift to a federal system of
government by Philippine President Rodrigo Duterte’s administration. The shift which was largely to
avoid Manila-centric politics requires the nation to be domestically separated into states with Manila
serving as the “federal capital.”
In drawing up proposals for this new model, member of the consultative committee, Aquilino
Pimentel, included Sabah as part of Philippine territory. Pimentel’s proposals included 12 states and
he suggested that Sabah be added on as the nation’s 13th state.
“There should be a way that is acceptable under international laws to assert our claim to Sabah. I
think we can defer it a little bit more but to say that we stop doing it is not in the context of my
proposal,” he said in an interview with Filipino media, ABS-CBN News Channel.
In response, Malaysian Minister of Foreign Affairs, Anifah Aman rubbished the remarks and warned
that such statements could hurt bilateral relations between the two nations. He also reiterated his
country’s position that it “…does not recognise and will not entertain any claims by any party on
Sabah.”

https://theaseanpost.com/article/right-north-borneo
History behind the claim
The roots of the disagreement lie in an 1878 contract between the Sulu Sultanate – which controlled
Sabah at the time – and the British North Borneo Company. The British company could occupy the
eastern half of Sabah indefinitely as long as it paid a sum of money to the Sultanate.
When World War 2 ended, Sabah was handed over to the British government and made a crown
colony. Sabah gained independence in 1963 when in a referendum, its people overwhelmingly voted
in favour of joining the Federation of Malaysia.
The Philippines has always maintained that the contract signed in 1878 was to be interpreted as a
lease whereas the British and Malaysia regarded it as sale of land. Till today, Malaysia does pay
approximately US$1,000 to the Sulu Sultanate in accordance with the agreement.

Is there a right to claim?

According to Associate Professor of Law from the University of the Philippines, Jay Batongbacal, the
Philippine government’s official position since they announced the claim in 1962 and subsequent
negotiations – particularly the Manila Accord – “…established and preserved that right to pursue the
claim despite the formation of the Federation of Malaysia and the conduct of relations thereafter.”
The Manila Accord was signed by Malaysia, the Philippines and Indonesia on 31 July 1963 and
included the peaceful settlement of the Philippines’ claim to Sabah.
The Manila Accord has been used multiple times by the Sulu Sultanate as a basis to pressure the
Filipino government to assert its claim to the northern part of Sabah as the Sultanate still wields
significant influence amongst Sulu residents. Even Duterte himself vowed to pursue the claim during
his presidential campaign in 2016 which garnered him political support from locals.
“Now that discussions of the federalism proposal are in full swing, the issue of the Sabah claim has
been raised because the advocates want to "activate" the claim and move its dormant status,”
Batongbacal, who is also an expert in legal history told The ASEAN Post in an email response.

Straining bilateral relations

These developments could strain bilateral relations between Malaysia and the Philippines – as it did
in the past.
“In the 1960s, the two countries ended diplomatic relations twice as a result of this dispute. It might
come to that again depending on how the respective leaders handle the matter,” added
Batongbacal.
“It is a potential international crisis, especially if Malaysia decides to initiate a crackdown and step
up the expulsion of Filipino residents in Sabah. At the same time, it could create a domestic crisis in
Mindanao if the Duterte administration is seen to be weakening or conceding its position,” he
explained.
In a post-colonial era, the right to self-determination should be made a priority in view of such
territorial disputes that involve large swathes of the population. The people of Sabah for all these
years have identified themselves as Malaysians and an overnight citizenship change could likely
ruffle the feathers of the patriotic among them.
However, it is also the right of the Philippine government to assert its claim in a peaceful manner
which could also see the matter being escalated to the International Court of Justice. This would
likely negatively impact relations between the two countries.
It is hoped that diplomacy and cool heads prevail with Malaysia and the Philippines both treading
the path of peaceful negotiations which doesn’t lead to any skirmishes.
The Philippines Claim over Sabah and its Arguments.

It is the thesis of the Philippine government that the contract of 1878 was a lease,
and not a transfer of ownership or sovereignty. Treacher, who was present at the signing of
the contract and as witness, characterized the contract as a lease and referred to the money
payment as annual rentals.
Diosdado Macapagal, who served in the Department of Foreign Affairs in 1946 and
later became President of the Philippines, advocated filing a claim at the United
Nations. The filing took place on June 22, 1962. They claim sovereignty, jurisdiction and
proprietary ownership of North Borneo. The Philippines claim they have the legal and
historical rights to North Borneo as the successor-in-interest of the Sultan of Sulu.
In the early part of the 1960s it became an imperative for the Philippines, aside from
the strong historical and legal rights that North Borneo is important to Philippine territory
and vital to its security. At this time (1960’s), communism in the region was in its height and
Philippines were anxious that Malaya would succumb to the potent communist threat from
mainland Southeast Asia, creating a scenario in which a communist territory would be
immediately at the southern frontier of the Philippines.
Philippine anxiety on the communist threat has subsided, but another form of
menace developed. From the dynamics of the Muslim separatist movement in the south,
there evolved a more terrifying threat. The Sabah state of present Malaysia harbored some
of the kidnappers, Abu Sayyaf and Al-Quedah, provoking international concern through
widespread violence, state wide terror and their vision of establishing independent states.
The British North Borneo Company based its rights from the grant signed in January,
1878. In it, the sultan of Sulu granted certain concessions and privileges to Baron de
Overbeck, an Austrian national who was at the time the Austrian Consul-General at
Hongkong, and Alfred Dent, a British national, in consideration of an annual rent or tribute
of 5,000 Malayan dollars. Dent later bought out Overbeck, and transferred his rights to the
British North Borneo Company. The Company was granted a Royal Charter on November 1,
1881.
The Philippine government argues that Overdeck and Dent (the leasors) did not
acquire sovereignty or dominion over North Borneo. This is because, according to
international law, sovereignty can be ceded only to sovereign entities (e.g. government to
government agreement) or to individuals acting for sovereign entities (agreement between
leaders of nations). Obviously, Overbeck and Dent were private citizens of their respective
countries who did not represent any sovereign entities, but instead acted as mere
businessmen who only acquired grant of lease from the Sultan of Sulu. Hence, neither of
them did not, and could not, acquire sovereignty or dominion.
The above letter was written by the British Foreign Minister to explain and respond
to the Spanish protest regarding the grant of Royal Charter to the British North Borneo
Company. It was not the Spanish crown which made the protest alone; the Dutch
government also protested in the same way. Again, Lord Granville maintained in his letter to
the Dutch that the British North Borneo Company was a mere administrator, and that the
“British Government assumed no sovereign rights whatever in Borneo.”
The Philippine government, therefore, strongly argues that the transfer of rights,
powers and interest by the British North Borneo Company to the British Crown was not
possible. North Borneo Cession Order of 1946 took place just six days immediately after the
Philippines was declared independent by the United States. In the International Law, a
transferee (British Crown) cannot acquire more rights than the transferor (British North
Borneo Company). In other words, how can the British Crown exercise sovereign rights in
the form of protectorate in 1946, when the British North Borneo Company did not exercise
nor assume sovereignty over North Borneo? In other words, how can the British North
Borneo Company transfer sovereignty to the British Crown, which the company did not have
in the first place?
It has been said that President Manuel L. Quezon of the Commonwealth of the
Philippines (the transitional, semi-autonomous government of the Philippines under
American sovereignty which preceded the independent republic) “had decided not to
recognize the continued existence of the Sultanate of Sulu, particularly in reference to North
Borneo.” The Philippine Department of Foreign Affairs was not able to find a written record
of this statement. This pronouncement was against the Organic Law of the Philippine
Commonwealth, since the power to give and terminate recognition during the
Commonwealth Philippines was vested only in the Congress of the United States of America
(being the colonial power). Aside from the political technicality, International Law dictates
that any withdrawal or termination of recognition does not imply the dissolution of the
entity affected by the withdrawal.
The Philippine government believes that Dent, who was granted a Royal Charter in
the form of British North Borneo Company by the British government, to which the British
Crown derived its claim of sovereignty, was not authorized to acquire sovereignty or
dominion. Evidence to this was the official correspondence of Lord Earl Granville, British
Foreign Minister at the time, in his letter to the British Minister in Madrid dated January 7,
1882, explaining the character of the Charter Grant of the British North Borneo Company, as
follows:
The British Charter therefore differs essentially from the previous Charters granted by the
Crown to the East India company, the Hudson’s Bay Company, the New Zealand Company,
and other Associations of that character, in the fact that the Crown in the present case
assumes no dominion or sovereignty over the territories occupied by the company, nor does
it purport to grant to the Company any powers of government thereover; it merely confer
upon the persons associated the status and incidents of a body corporate, and recognizes
the grants of territory and the powers of government made and delegated by the sultan in
whom the sovereignty remains vested…As regards the general feature of the undertaking, it
is to be observed that the territories granted to the Company have been for generations
under the government of the Sultan of Sulu and Brunei, with whom Great Britain has had
Treaties of Peace and Commerce.

The British Foreign Minister writes this letter to explain and respond to the Spanish
protest regarding the grant of Royal Charter to the British North Borneo Company. It was
not the Spanish crown who made the protest alone; also the Dutch government protested.
Again Lord Granville maintains, in his letter to the Dutch, that the British North Borneo
Company was a mere administrator, and that “British Government assumed no sovereign
rights whatever in Borneo.”
The Philippine government, therefore, strongly argues that the transfer of rights,
powers, and interest by the British North Borneo Company to the British Crown, known as
North Borneo Cession Order of 1946 (that took place six days immediately after the
Philippines was declared independent by the United States), was not possible. In the
International Law, a transferee (British Crown) cannot acquire more rights than the
transferor (British North Borneo Company). In other words, how can the British Crown
acquire sovereign rights (in the form of protectorate in 1946), when the British North
Borneo Company did not exercise nor assume sovereignty over North Borneo? Again, since
Overbeck and Dent did not acquire rights of sovereignty or dominion over North Borneo
their transferee (British North Borneo Company), also, did not acquire rights of sovereignty
or dominion.

The 1930 Convention between the United States and Great Britain and its implication to
the Philippine Sabah Claim
Under the Carpenter Agreement of 1915, the Sultan of Sulu agreed to relinquish its
temporal power over Sulu but retained his sovereignty over North Borneo. As Governor
Carpenter clarified in this communication to the director of the Non-Christian tribe on May
4, 1920, as follows:
It is necessary however that there be clearly (sic) of official record the fact that the
termination of the temporal sovereignty of the Sultanate of Sulu within American territory is
understood to be wholly without prejudice or effect as to the temporal sovereignty and
ecclesiastical authority of the sultanate beyond the territorial jurisdiction of the United
States Government especially with reference to that portion of the Island of Borneo which
as a dependency of the Sultanate of Sulu is understood to be held under lease by the
chartered company which is known as the British North Borneo Company. ”

The American Governor General of the Philippine Island Francis B. Harrison made it
more clear that: “It is true Governor Carpenter’s contract or treaty with the Sultan of Sulu
of 1915 deprived the Sultan of his temporal sovereignty in the Philippine archipelago but did
not interfere with the Sultan’s status of sovereignty over British North Borneo lands.”
It is in the context of this statement that the 1930 Convention between the United
States and Great Britain defined their respective boundaries. The United States did not
intend to claim North Borneo. By this act of defining the respective boundaries, the United
States did not cede or waive anything to the British Crown.
 On the Spratly Islands Dispute

AS IT APPEARS - Lorenzo Paradiang Jr. () - August 6, 2011 - 12:00am

One reiterates that the Spratlys dispute be brought pronto to the United Nations. Rather than countering the
flexing of arms by China, puny Philippines has to confer with other countries also with claims over Spratlys to
take up the move for the United Nations to resolve.

Apparently for now, China appears to have calmed down with its threat that it’s an act of aggression or an act
of war if the Philippines insists with its claim over the Reed Banks in Kalayaan Islands and the Spratlys, when
U.S.A. belatedly changed its stance.

To recall, the U.S. Foreign Affairs through Secretary Hillary Clinton and the Secretary of Defense belatedly and
openly announced that America will stand by with the Philippines in the event of war over the Spratlys group
of islands. Thus, Clinton categorically said: “We are determined and committed to supporting the defense of
the Philippines,” and to modernize the Philippine military.

Perhaps, like a child emboldened by his elder brother’s confronting a bully, the Philippines has now brought
the Spratlys issue to the UN’s International Tribunal for the Law of the Sea (ITLOS) to resolve peacefully the
Spratlys dispute.

It’s quite inscrutable, however, that until now four other Asian countries, namely Vietnam, Brunei, Malaysia,
and Taiwan have not intervened and come forward to stake their claims of ownership over the Spratlys group.
It’s not only to fructify the saying “the more the merrier,” but to reinforce a united stand with the Philippines
as the better gesture of persuasion. Adopting the stance of standing by with virtual arms akimbo, especially
now that the dispute is brought to the UN’s ITLOS, doesn’t speak well of the sincerity and legitimacy of their
claims.

Such needed united stand against China which is bent on spreading its hegemony in such iconoclastic
brashness, is essential when the ITLOS will conduct its deliberations eventually. China still insists that the
entire Spratlys Islands and the West Philippine Sea within the Philippine waters as their sole territory. Of
course, this Chinese claim necessarily affects the Philippines, Brunei, Vietnam, Malaysia and Taiwan.

According to DFA Secretary Albert del Rosario, China still maintains that its sovereignty embraces over the
entire Spratlys Islands and beyond, within the periphery of the South China Sea as China takes the view that
“what is ours is ours and what is disputed can be shared.” On the other hand, the Philippines’ claim is based on
the 1992 United Nations Convention on the Laws of the Sea or UNCLOS.

Del Rosario hopefully opines that China has recently agreed to a “peaceful resolution,” as “the channels of
communications will be left open and we will continue to dialogue.” Well, that’s the sunny side of the issue,
although the Chinese Presidium may decide otherwise.

To repeat, the Philippine DFA has to prod diplomatically the other four Asian nations with claims over Spratlys
to prove their ownership before the United Nations to complete the “dialogue” before the ITLOS. Otherwise,
the dispute would linger on, and indefinitely hang in continuing conflict vis-à-vis China’s overall claim over all
islands and islets located within the South China Sea.

That’s the ultimate crux that while the Philippines and the four other countries have ownership over the
Spratlys group of islands, China adamantly maintains that all the Spratly Islands located within the South China
Sea are owned by China. Hopefully, the United Nations’ International Tribunal for the Law of the Sea can
resolve the disputed issue fairly and equitably.

Read more at https://www.philstar.com/opinion/2011/08/06/713585/spratly-islands-dispute#XxPmKo346VEFePtd.99012

https://www.philstar.com/opinion/2011/08/06/713585/spratly-islands-dispute
Island of Palmas case: Mere proximity was not an
adequate claim to land
Island of Palmas Case, (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb.
Awards 829), was a case involving a territorial dispute over the Island of Palmas (or Miangas) between the
Netherlands and the United States which was heard by the Permanent Court of Arbitration. The Island of Palmas
(known as Pulau Miangas in Bahasa Indonesian) is now within Indonesian sovereignty.
This case is one of the most highly influential precedents dealing with island territorial conflicts.

Facts of the case

Palmas, also referred to as Miangas, is an island of little economic value or strategic location. It is
two miles in length, three-quarters of a mile in width, and had a population of about 750 when the
decision of the arbitrator was handed down. The island is located
between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the
former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States in
the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906,
the United States discovered that the Netherlands also claimed sovereignty over the island, and the
two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On
January 23, 1925, the two government signed an agreement to that effect. Ratifications were
exchanged in Washington on April 1, 1925. The agreement was registered in League of Nations
Treaty Series on May 19, 1925. The arbitrator in the case was Max Huber, a Swiss national.
The question the arbitrator was to resolve was whether the Island of Palmas (Miangas), in its
entirety, was a part of the territory of the United States or the Netherlands.
The legal issue presented was whether a territory belongs to the first discoverer, even if they do not
exercise authority over the territory, or whether it belongs to the state which actually exercises
sovereignty over it.

The Arbitrator's decision

The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands’ position and stated that
the Netherlands held actual title to Palmas :
For these reasons
The Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1925 DECIDES
that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory.
done at The Hague, this fourth day of April 1928. Max Huber, Arbitrator
Michiels van Verduynen, Secretary-General.

Right by discovery
In the first of its two arguments, the United States argued that it held the island because it had
received actual title through legitimate treaties from the original "discoverer" of the island, Spain.
The United States argued that Spain acquired title to Palmas when Spain discovered the island and
the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was
then ceded to the United States in the Treaty of Paris (1898) after Spain's defeat in the Spanish-
American War. The arbitrator noted that no new international law invalidated the legal transfer of
territory via cession.
However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty
of Paris could not grant to the United States Palmas if Spain had no actual title to it. The arbitrator
concluded that Spain held an inchoate title when Spain “discovered” Palmas. However, for a
sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to
actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this
case, Spain did not exercise authority over the island after making an initial claim after discovery and
so the United States’ claim was based on relatively weak grounds.
Contiguity
 The United States also argued that Palmas was United States territory because the island was closer
to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The
arbitrator said there was no positive international law which favored the United States' approach of
terra firma, where the nearest continent or island of considerable size gives title to the land in
dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the
international community followed the proposed United States approach, it would lead to arbitrary
results.

Continuous and peaceful display of sovereignty

The Netherlands' primary contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the United States had failed
to show documentation proving Spanish sovereignty on the island except those documents that
specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a
part of the judicial or administrative organization of the Spanish government of the Philippines.
However, the Netherlands showed that the Dutch East India Company had negotiated treaties with
the local princes of the island since the 17th century and had exercised sovereignty, including a
requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed
out that if Spain had actually exercised authority, than there would have been conflicts between the
two countries but none are provided in the evidence.
Conclusion
Under the Palmas decision, three important rules for resolving island territorial disputes were
decided:
 Firstly, title based on contiguity has no standing in international law.
 Secondly, title by discovery is only an inchoate title.
 Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the
arbitrator required that the claim had to be open and public and with good title), and the discoverer
does not contest this claim, the claim by the sovereign that exercises authority is greater than a title
based on mere discovery.

http://rsb-internationallawblog.blogspot.com/2012/01/island-of-palmas-case-scott-hague-court.html
Special Report: The legal battle for Palmas island
- Romel Bagares, Aurea Calica () - February 3, 2003 - 12:00am

( Conclusion )

If the Philippines loses some 15,000 square kilometers of rich territorial waters in the Sulawesi Sea,
there will be no one to blame but the Arroyo administration.

While President Arroyo is "comforting" overseas Filipino workers in Kuwait, Indonesia continues to
document its claim to the small island of Palmas, only 47 nautical miles east-northeast of Sarangani
island in Mindanao.

Reeling from its loss to Malaysia of two islands off Sabah last year, Jakarta has already told Philippine
officials that it has established new territorial baselines that includes Palmas, which Indons call Pulau
Miangas.

"It’s easy to see why Indonesia is keen on claiming Palmas," said international law expert Prof. H.
Harry Roque.

"Using Palmas as basepoint to draw straight baselines, it could extend its territorial sea and its
exclusive economic zone to a distance that would eat up 15,000 square kilometers of what the
Philippines considers as part of its national territory," Roque told The STAR.

Sources said the Indons also included in the new baselines the islands of Merampit and Marore,
which are shown in the 1899 Atlas de Filipinas as belonging to the Philippines but excluded in
boundaries established by the 1898 Treaty of Paris between Spain and the United States.

The 1898 Treaty of Paris settled the Spanish-American War and ceded several Spanish territories,
including the Philippines, to the US.

The Indonesians claim that Marore and Merampit belong to Indonesia because they were not
included in the 1898 Treaty of Paris while they inherited Palmas from the Dutch who allegedly
gained title to the island from the US in a landmark arbitration case.

In 1909, the US and the Netherlands disputed ownership of Palmas Island and it was not until 1925
that they agreed to submit the matter to arbitration.

Three years later, the designated arbitrator Judge Max Huber of the Permanent Court of Arbitration
ruled in favor of the Netherlands because they supposedly had "continuous administrative control"
of the island.

International law favors RP

But Roque argues that this Huber doctrine of "continuous administrative control" as well as
international legal principles and jurisprudence favor the Philippines.

In his article in the forthcoming issue of the Philippine Law Journal, Roque argues that Spain could
not have legally ceded Palmas or any part of the Philippines to the United States because Filipinos
had already established the Republic of the Philippines on June 12, 1898 before the Treaty of Paris
was signed on Dec. 10, 1898.

Roque maintained that even if Spain validly ceded the Philippines to the United States, the Huber
decision on the Palmas island arbitration case cannot be binding on the Philippines under
international legal principles on state succession.

Roque said that even if Jakarta continues to use the Huber doctrine as a basis for its claim on Palmas,
their claim would remain weak because "for all intents and purposes (Palmas) is occupied by
Filipinos with no Indonesian presence at all."

Backlog at the Palace

Despite the strength of Manila’s legal position, however, several key executive decisions still have to
be made on how to face Indonesia’s claims on Palmas, Marore and Merampit.

Already, Indonesia has spent some $40 million to chart its boundaries in the internationally accepted
standard which it used to designate new baselines, including the three Philippine islands.

Jakarta has also officially designated "archipelagic sealanes" that have already been approved by the
International Maritime Organization (IMO), which would further strengthen the definition of the
country’s maritime borders under the United Nations Convention on the Law of the Sea (UNCLOS).

On both issues of hydrographic charting and designation of sealanes, the Philippines is lagging
behind Indonesia, which has 13,000 islands to make it the largest archipelago in the world.

Small but terrible

But while Palmas, Marore and Merampit are only small dots in the wide sea that separates Indonesia
and the Philippines, they actually have strategic, political and economic importance.

Roque said the islands of Palmas, Marore and Merampit lie close to the "strategic axis" linking the
Pacific and Indian Oceans.

"The establishment of archipelagic sealanes between Cape San Agustin and Palmas over which the
Philippines has sovereignty enables the country, possibly in cooperation with Indonesia, to monitor,
control and maintain surveillance of sensitive maritime jurisdictions," Roque said.

"Such monitoring and control is vital to the security and economic interests of the Philippines since
major population centers, industrial zones and ports of Mati, Davao City, General Santos, Cotabato,
Pagadian and Zamboanga are directly accessible from these sealanes," he added.

The island is also close to critical spawning areas and passage "highways" of economically important
fish, like the yellow-fin tuna. The area has also been tagged as a "large marine ecosystem" by the
Worldwide Fund for Nature (WWF) and has a vital environmental importance.

Roque said the "warm pool" of the world’s oceans is also centered on Southern Mindanao, making
the Davao Gulf, Sarangani and Illana Bay in the Moro Gulf as the most suitable sites for large-scale
"ocean terminal energy plants (OTEC)" that are envisioned to produce at least 400 megawatts a
year.

OTEC, Roque said, promises to be "the most environmentally friendly renewable sources of energy
now in the commercial horizon" after technological breakthroughs at the Saga University in Japan.

"The Philippines needs to ensure the maritime security of these sea areas in anticipation of the
launching of revolutionary types of archipelagic development based on OTEC and deep ocean water
technologies, providing air-conditioning, food, energy and fresh water direct from the sea," he said.
Alternative energy is also believed to be available from the Philippine Deep, which lies along the
country’s eastern seaboard, Roque said.

He noted that scientists are now developing the technology to utilize "heavy water," or deuterium,
which is abundant at the bottom of the Philippine Deep as the "ultimate fuel of the future."

Read more at https://www.philstar.com/headlines/2003/02/03/193954/special-report-legal-battle-

palmas-island#dptmICWWpLsidBHm.99

https://www.philstar.com/headlines/2003/02/03/193954/special-report-legal-battle-palmas-island
Main territories claimed
Spratly Islands
Main articles: Spratly Islands, Spratly Islands dispute, and Philippines and the Spratly Islands

The Philippines claims fifty-two landforms in the Spratly Island group. Of these fifty-two landforms, only five
islands, two cays, and three reefs are under Philippine occupation: the Flat Island (Patag), the Loaita Island
(Kota), the Nanshan Island (Lawak), the Thitu Island (Pagasa), the West York Island (Likas), the Lankiam Cay
(Panata), the Northeast Cay (Parola), the Irving Reef (Balagtas), the Commodore Reef (Rizal), and the Second
Thomas (Ayungin) Reef. Some of the other landforms claimed but not occupied by the Philippines as of now
are either occupied by Vietnam, China, Taiwan or Malaysia. Landforms in the Spratly Islands group that have
not been claimed by the Philippines are typically those that are closer to Vietnam. The farthest landform the
Philippines claims is Ladd Reef, which is currently occupied by Vietnam.
The Philippines established a municipality in the province of Palawan named Kalayaan after all the landforms
found on Pag-asa island,
Sabah
Main article: North Borneo dispute

Between 1658 and 1700, the Sultanate of Sulu acquired the eastern part of the territory of Northern Borneo
after helping the Bruneian forces settle a civil war. The Sulu Archipelago then came under the control of
the Spanish while the area of Northern Borneo was administered by the British after the sultans of Brunei and
Sulu agreed to cede their control. The western and eastern parts of Northern Borneo became known as North
Borneo.
In its process of decolonization beginning in 1946, Great Britain included Sabah in the newly
formed Federation of Malaysia. The Philippines, which had already achieved its independence from the United
States, protested the formation of Malaysia and filed claims for the whole territory of Northern Borneo under
the administration of President Diosdado Macapagal. However, during a meeting to plan Maphilindo, the
Philippine government stated that it had no objection to the formation of Malaysia, but claimed that the
Sultan of Sulu wanted payment from the British government. The first Malaysian Prime Minister, Tunku Abdul
Rahman, said he would return to Kuala Lumpur to protest the Philippines' claim.
Philippine President Ferdinand Marcos later revived the claim and trained a number of Moro fighters to
reclaim the territory in a secret mission named Operation Merdeka. However, when the recruits gained
knowledge of their true mission, most of them demanded to be returned home, as they did not want to kill
their fellow Muslims in Sabah. Their request was denied; Marcos did not send back his soldiers but instead
executed most of the fighters in an event known as the Jabidah massacre. This caused a southern Philippines
insurgency to emerge, and the claim continued to be escalated by other claimants from the defunct Sultanate
of Sulu. These claimants each attempted to give themselves legitimacy by self-proclaiming as the new Sultan of
Sulu with support from politicians in the Philippine central government wishing to incorporate Sabah into the
Philippines. Most new claimants and Philippine politicians today use the promised Malaysian lease payment as
their main excuse to take over the territory and also use it as a reason before the International Court of
Justice (ICJ).
Scarborough Shoal

The Scarborough Shoal, more correctly described as a group of islands, atolls, and reefs rather than a shoal, is
located in the South China Sea. The nearest landmass is Palauig town, Zambales province, Luzon Island, at 221
kilometres (137 mi). It is about 198 kilometres (123 mi) west of Subic Bay.
Both the Philippines and the People's Republic of China claim it.
In April 2012, the Philippines accused Chinese boats of fishing illegally and asked them to leave.
The Philippines is asserting jurisdiction over the shoal based on the juridical criteria established by public
international law on the lawful methods for the acquisition of sovereignty. Among the criteria (effective
occupation, cession, prescription, conquest, and accretion), the Philippines said that the country "exercised
both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence". Thus, it
claims to have erected flags on some islands and a lighthouse which is reported to the International Maritime
Organization. It also asserts that Philippine and US Naval Forces have used it as an impact range and that its
Department of Environment and Natural Resources has conducted scientific, topographic and marine studies
on the shoal, while Filipino fishermen regularly use it as a fishing ground and have always considered it their
own.[8] Likewise, multiple engagements and arrests of Chinese fishermen were already made at the shoal by
the Philippine Navy for using illegal fishing methods and catching of endangered sea species. [9]
The legal basis of the Philippine's assertion is based on the international law on acquisition of sovereignty.
Thus, the Philippine government explains that its Exclusive Economic Zone (EEZ) claim on the waters around
Scarborough Shoal is different from the sovereignty exercised by the Philippines on the shoal itself.
The Chinese basis for the claim is that the shoal would have been first discovered by Chinese in the 13th
century and historically used by Chinese fishermen.
Palmas or Miangas Island
Main article: Island of Palmas Case

The Island of Palmas (or Miangas) was involved in a territorial dispute between the Netherlands and
the United States which was heard by the Permanent Court of Arbitration.
This case is one of the most highly influential precedents dealing with island territorial conflicts.
Palmas, also referred to as Miangas, is an island of little economic value or strategic location. It is two miles in
length, three-quarters of a mile in width, and had a population of about 750 when the decision of the
arbitrator was handed down. The island is located between Mindanao, Philippines; and the northernmost
island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines
to the United States and Palmas sat within the boundaries of that cession to the U.S. In 1906, the United States
discovered that the Netherlands also claimed sovereignty over the island and the two parties agreed to submit
to binding arbitration to resolve the dispute on January 23, 1925. The arbitrator in the case was Max Huber, a
Swiss national.
The question the arbitrator was to resolve was whether the Island of Palmas (Miangas), in its entirety, was a
part of the territory of the United States or the Netherlands. The arbitrator ruled in favor of the Netherlands'
position and stated that the Netherlands held the actual title to Palmas.
In the first of the United States' two arguments, it claimed to hold the island because it had received the actual
title through legitimate treaties from the original "discoverer" of the island, Spain. The United States argued
that Spain acquired the title to Palmas when she discovered the island and that the island was terra nullius.
Spain's title to the island, because it was part of the Philippines, was then ceded to the United States in
the 1898 Treaty of Paris (1898) after Spain's defeat in the Spanish–American War. The arbitrator noted that no
new international law invalidated the legal transfer of territory via cession.
However, the arbitrator noted that Spain could not legally grant what it did not hold and that the Treaty of
Paris could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that
Spain held an inchoate title when Spain "discovered" Palmas. However, for a sovereign to maintain its initial
title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it was a
simple act such as planting a flag on the beach. In this case, Spain did not exercise authority over the island
after making an initial claim after discovery, so the United States' claim was based on relatively weak grounds.
The United States also argued that Palmas was United States' territory because the island was closer to the
Philippines than to Indonesia, which was then held by the Netherlands East Indies. The arbitrator said there
was no positive international law which favored the United States' approach of terra firma, where the nearest
continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere
proximity was not an adequate claim to land, noting that if the international community followed the
proposed United States approach, it would lead to arbitrary results.
The Netherlands' primary contention was that it held actual title because she had exercised authority on the
island since 1677. The arbitrator noted that the United States had failed to show documentation proving
Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery.
Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the
Spanish government of the Philippines. However, the Netherlands showed that the East India Company had
negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty,
including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator
pointed out that if Spain had actually exercised authority, then there would have been conflicts between the
two countries but none were provided in the evidence.
Impact and legacy

Under the Palmas decision, three important rules for resolving island territorial disputes were decided:
Firstly, a title based on contiguity has no standing in international law. Secondly, a title by discovery is
inchoate. Finally, if another sovereign begins to exercise continuous and actual sovereignty, and the arbitrator
required that the claim had to be open and public and with good title, and the discoverer does not contest this
claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.
However, to this day, several Philippine legislators claim that the island cannot be part of Indonesia today
because the ethnic group living in this island is far more related by language to the Sarangani people of
Mindanao than any ethnic group in Indonesia (e.g., Minahasa). However this is not entirely true, since
languages spoken in Miangas such as Sangir and Talaud are also spoken in the North Sulawesi province by a
significant number of people.
Currently, the Philippine government has no desire to contest the sovereignty of the Indonesian Government
over Miangas Island and respects the Indonesian administration over the island.