THE PHILIPPINE CLAIM TO NORTH BORNEO by ORLANDO M. HERNANDO A. B., University of the Philippines, 1951 Ll. B., Central Philippine University, 1955 A MASTER'S THESIS submitted in partial fulfillment of the requirements for the degree MASTER OF ARTS Department of political science College of Arts and Sciences KANSAS STATE UNIVERSITY Manhattan, Kansas 1966 Approved by: Major Professor / 1/ TABLE OF CONTENTS PREFACE CHAPTER I. INTRODUCTION 1 CHAPTER II. BRIEF HISTORY OF NORTH BORNEO 7 CHAPTER III. HISTORICAL AND LEGAL BASIS OF THE PHILIPPINE CLAIM TO NORTH BORNEO 20 CHAPTER IV. COMPETING BRITISH CLAIM AND THE PHILIPPINE REBUTTAL . .. 38 CHAPTER V. TITLE TO TERRITORY AND PEACEFUL SETTLEMENT OF DISPUTES . . 49 CHAPTER VI. SUMMARY AND CONCLUSION 75 APPENDIX PREFACE This study grew out of a desire to discover whether there is really a valid basis in international law for the Philippine claim over North Borneo. A number of articles which appeared in Philippine magazines and newspapers from 1957 to 1963 discussed the claim. There was no telling whether the filing of the claim was merely motivated by political reasons or whether there was a valid reason vital to the interest of the Phil- ippines. The writer's curiosity was further whetted by the lack of material on the subject in American books and magazines. At least one published article extensively discussed the claim. One book discussed the claim insofar as it related to the political affairs of the Federation of Ma- laysia. References to the claim in magazine and newspaper articles seemed vague and rested on no sound sources of information. Some difficulty was encountered in securing materials for this study, a number of which had to come from the Philippines. For securing these materials, the writer of this study is heavily indebted to his father, his wife, his youngest sister, and two loyal friends. Acknowledgement is also made of the invaluable assistance given by Professors Wallace F. Caldwell, Merlin Gustafson, Louis H. Douglas, and Joseph Hajda which led to the final development of this study. CHAPTER I INTRODUCTION A new territorial controversy has emerged on the international scenes The Philippine claim to North Borneo, now called Sabah, a member State of the Federation of Malaysia. Scant attention was given to the claim when it was first formally filed in June 22, 1962 by the Republic of the Philippines through a diplomatic note transmitted to the British Foreign Office. Most people did not anticipate that the Philippines would make such a claim believing that Great Britain had clear title to the territory. The claim since then has been overshadowed by later political develop- ments in Southeast Asia such as the struggle between the Netherlands and Indonesia over West New Guinea and the present aggressive policy of confrontation which Indonesia now pursues against the Federation of Malaysia. The claim has not yet been settled. Because it subsists, the dispute has disrupted normal relations between the Philippines and the Federation of Malaysia and has created feelings of rancor and bitterness between them. I. THE PROBLEM Statement of the problem. It was the purpose of this study (1) to present the basis of the Philippine claim to North Borneo; (2) to test the validity of the claim according to applicable rules and principles 2 of international law in relation to the competing British claim; and (3) to examine the means by which international law provides for the settlement of such a dispute. Importance of the study. First, this study is important because the settlement of the dispute is directly related to the disrupted political relationships between Malaysia and the Philippines. Its settlement, however, must depend on whether a valid claim exists for the Philippines. While the original claim was legalistic in nature, a number of reasons have been variously suggested to explain the Philippine claim: (1) that it was merely a manifestation of Philippine nationalism or "jingoism," or that (2) it reflected merely the result of Philippine President Diosdado Macapagal's search of a foreign policy distinctively Filipino and not American in inspiration. Thus, Willard A. Banna suggests that the legal basis for the claim has undergone the following elaborations and modifica- tions not altogether consistent:* 1) Malaysia is an artificial and unstable Federation, an invitation to Chinese Communist subversion, which can readily spread from Singapore through Borneo into the Philippines. In any event, Malaysia is likely to be Chinese dominated and an affront, therefore, to all Southeast Asian nationalists. 2) Malaysia cannot protect North Borneo (from Communist China or from Indonesia, for instance), but the Philippines can. 3) Indonesia is the coming power in Southeast Asia and, like it or not, the Philippines must get along with Sukarno, by cautiously supporting Sukarno on the Malaysia issue, and the Philippines can convert Indonesia into a responsible 1Willard A. Hanna, The Formation of Malaysia (New York: American Universities Field Staff, Inc., 1964), p. 3. 3 neighbor. Thus, the Philippines can assert its own leader- ship in Southeast Asia and strengthen the anti-communist cause. 4) The British have shamelessly manipulated Malaya and Malaysia. They exercised pressure upon Tengku Abdul Rahman to resist Indonesian and Philippine moves of conciliation at the time of the Manila Conference and during the subse- quent United Nations "assessment" of public opinion in Borneo. Malaysia is thus a creature of the British, the United Nations assessment is invalid, and the Tengku, just as Sukarno says, lends himself to British "neocolonial" designs by failing to support the basic new principles of Southeast Asian determina- tion of Southeast Asian affairs. 5) "Maphilindo"—Macapagal's proposal for a "loose confederation" of the Philippines, Indonesia, and Malaysia, recently readjusted to allow for membership of all South- east Asian states except North Vietnam is the answer to the Malaysia crisis. These political arguments may have been raised by the protagonists to the dispute to becloud the legal nature of the dispute as it is under- stood in international law. Thus, secondly, this study is important because there should be estab- lished a valid basis for the Philippine claim to prove that there is a justiciable issue not one merely raised by the Philippines for ulterior political motives. The. basis must be clearly shown in order to show that the claim rests on a strong foundation in international law. In the words of R. Y. Jennings, a British publicist:2 It is not enough to have rules of law. If the law is to be effective there must also be courts to determine the appli- cation of the law to the circumstances of a particular dispute. The more sophisticated and developed the law, the more there will be need of such determination. Moreover, the jurisdic- tion of the court ought in a developed system to be obligatory, 2R. Y. Jennings, "The Progress of International Law."' The British Yearbook of International Law (London: Oxford University Press, 1959), pp. 339-340., 4 in the sense that one party to a dispute can take his adversary before the court whether he be willing or no. Third, this study is important because the peaceful resolution of the dispute by methods recognized in international law, as for instance, by adjudication by the International Court of Justice might have far- reaching results in Asia. A recent study revealed that comparatively few Asian and African countries have accepted the compulsory jurisdiction of the International Court of Justice under the optional clause of its Statute. Further, as the record shows, these countries have generally been reluctant to go before the Court for the settlement of their dis- putes in the short time that most of them have become independent. Two reasons have been advanced for this situation: First, a lawyer-like fear that the states might lose the case so that it seems more advantageous to leave the matter unsettled; and secondly, some of these states consider an international litigation an unfriendly act to be avoided insofar as possible.4 The Philippines has repeatedly urged Britain, in the beginning, and later Malaysia to give their consent to let the International Court of Justice settle the case. Both nations have refused. Fourth, this study is important in that it seeks to examine the validity of the rules of occupation, cession, and prescription as well those referring to the colonial protectorate and the territorial lease as methods of acquiring title to territory in international law as applied to the competing Philippine and British claims to North Borneo. 3R. P. Anand, "Role of the New Asian-African Countries in the Present International Legal Order," The American Journal of International Law. LVI (April, 1962), p. 393. 4Ibid. 5 Methods of investigation. The methods used are legal and historical. Historical research was utilized to discover the basis of the competing Philippine and British claims. Legal research was resorted to as a means of laying the legal foundation for the competing Philippine and British claims in international law. Sources. Resort has been had to books, periodicals, documents, writings of publicists, cases decided by international tribunals, and other sources acceptable to the International Court of Justice. Bias of the researcher. The writer of this study is a Filipino but he trusts that his legal and academic training are sufficient to prevent him from the development of a personal bias. This study was made not to bolster or strengthen the claim of the Republic of the Philippines, a matter that is perhaps safely entrusted to more capable and competent hands. Difference of the study from other studies. This study differs from other studies in that it attempts to present both the historical and legal basis for the Philippine claim to North Borneo in relation to the competing British claim. It also seeks to analyze the basis of the Phil- ippine claim within the context of applicable principles of international law without presuming to anticipate the judgement of the International Court of Justice. It also seeks to examine the means by which a dispute of this nature might be settled peacefully according to methods recognized in international law. Importance of competing British claim. The question of the Phil- 6 ippine claim to North Borneo cannot be adequately investigated without looking at the competing British claim which is now succeeded to by the Federation of Malaysia. The territory of North Borneo had long been ad- ministered by British nationals and in 1946 was formally made a colony of the British Crown. Importance of Indonesian claim. While Indonesia is at present engaged in guerrilla infiltration of North Borneo (or Sabah) her claim will not be investigated or discussed in this study. II. DIVISIONS OF THE STUDY This study is divided into six chapters. Chapter I is the intro- duction. Chapter II deals with the geography and history of North Borneo with particular reference to the interests of Great Britain and the Republic of the Philippines. Chapter III deals with the historical and legal basis of the Phil- ippine claim. Chapter IV discusses the competing claim of Great Britain (now suc- ceeded to by the Federation of Malaysia) and the rebuttal of the Philippine Government. Chapter V discusses the rules and principles of international law applicable to the dispute and the means for the settlement of this dispute as provided for in international law. Chapter VI deals with the summary and the conclusion. 7 CHAPTER II BRIEF HISTORY OF NORTH BORNEO Some attention was directed to the North Borneo territory in 1962 when Malayan Prime Minister Abdul Rahman proposed the formation of a new Federation of Malaysia.1 At that time, Willard A. Hanna described North Borneo as racially the most complex, economically the most swiftly developing, politically the most retarded, strategically perhaps the most important of all the prospective members of what could prove to be Southeast Asia's most stable, prosperous, and progressive nation. North Borneo has been in the past and remains today something of an international curiosity, an extreme and generally agreeable combination of anomaly and anachronism. It was for many centuries the domain of pirates, slavers, and head-hunters. It emerged late on the stage of modern world history by way of three colonial experiments which culminated rather remarkably, the first in victory for "the natives"; the second in the investiture of a highly popular White Rajah; and the third in the replacement of an American would-be rajah by the most paternalistic and hence the least lucrative of the British chartered com- panies.2 Geographic facts. North Borneo is located on the northeast tip of Borneo, third largest island in the world. It has an area of 29,388 square miles, the greater part of which is covered by jungle, unpopulated with very little communications except for jungle tracks and rivers which serve as highways to the interior. In 1957, its total population was 454,421 broken down into racial ^•Willard A. Hanna, The Formation of Malaysia (New York: American Universities Field Staff, Inc., 1964), p. 40. 2Ibid.