Privilege Speech of Senator Lorenzo Sumulong on The Sabah Claim

Annex A:
Privilege Speech of Senator Lorenzo Sumulong on Philippines' North Borneo (Sabah) Claim
Philippine Senate, March 25, 1963.


I have refrained from discussing on the floor of the Senate the Malaysia plan or the alternative plan of a Greater Malayan Confederation proposed by President Macapagal in connection with the Philippine claim of sovereignty to a portion of North Borneo, while the Senate Committees on Foreign Relations and National Defense and Security were holding joint closed-door hearings in Camp Murphy.
As your Chairman of the Committee on Foreign Relations, I had made my own studies and researches, but I thought that there might be new facts and considerations which our defense and foreign affairs officials might bring to our attention during the briefing.
Now that the briefing is over and the administration experts have submitted to the two Committees all the facts within their knowledge and possession, I believe it is already proper, nay, I believe it is my duty to submit for the consideration of the entire Senate and of our people the facts and considerations which I believe are material and necessary to the formation and crystallization of an intelligent opinion about the two plans. In so doing, I want to make clear the responsibility for the facts and considerations I am about to present is my own.
I want to make clear that I am always subject to correction. If my facts and considerations are wrong, I would be ready to admit and correct my mistakes. And I do hope that others will do likewise.
Our commitments
Under the United Nations Charter, it is the duty of every colonial power administering non-self-government or independence and until that people has been made self-governing or independent, it is the duty of the colonial power to submit to the United Nations every year a report of its administration of the territory.
The duty of the administering power to prepare the non-self-governing territory for self-government or independence is provided for in Chapter XI, Article 73 b of the United Nations Charter which makes it the duty of the administering power "to develop self-government, to take due account of the political aspirations of the (non-self-governing) peoples and to assist them in the progressive development of their free political institutions."
No RP Protest
Since the organization of the United Nations in 1945, Britain in accordance with the obligations imposed by the Charter has declared herself to be the colonial power administering Sarawak as British colony and has been submitting to the United Nations every year a report of her administration of these three non-self-governing territories. During all that time, the Philippines as a member of the United Nations has not put forward any claim of sovereignty over North Borneo, nor has the Philippines registered any reservation or protest to the report submitted by Britain to the United Nations every year as the administering power over North Borneo. It was only in December of last year (1962) that the Philippine delegation, during the consideration of the yearly report of the British administration over North Borneo in the Trusteeship Committee, made a reservation contesting for the first time the right of the British to rule and administer North Borneo.
Belated claim
Why was the Philippine claim of sovereignty to North Borneo so tardily presented in the United Nations? The answer is that North Borneo is not a part of the national territory of the Philippines as defined and delimited in our Constitution. When the United Nations was organized in 1945, the claimants to North Borneo was not the Philippines but the heirs of the late Sultan Jamalul Kiram who died in 1936. If the said heirs had any claims to sovereignty over North Borneo — as distinguished from their proprietary claims — they could have filed a petition or a reservation to the United Nations protesting against British rule and administration over North Borneo, but they did not file any such petition or reservation. It was only in February of last year (1962) that the said heirs informed our Department of Foreign Affairs that they were claiming sovereignty to North Borneo and they offered to turn over such claim of sovereignty to the Republic of the Philippines, reserving however to themselves their proprietary claims.
This offer was accepted by President Macapagal and to give semblance of legality to the transfer of sovereignty from the said heirs to the Republic of the Philippines, in September of last year (1962) out of the several surviving heirs of Sultan Jamalul Kiram who died in 1936, Esmail Kiram was proclaimed the new Sultan of Sulu claiming to possess all the attributes and prerogatives of a sovereign ruler and as such he executed a deed of cession of his alleged claim of sovereignty to North Borneo in favor of the Republic of the Philippines.
A mistake
I am and have always been in favor of our government giving every possible support to the proprietary claims of the heirs of the late Sultan Jamalul Kiram. But I have always believed as I still believe that it was a mistake for the President Macapagal to have agreed to such transfer of the claim of sovereignty from the said heirs to the Republic of the Philippines for the following reasons:
(1) The said heirs had never filed a petition or reservation before the United Nations claiming sovereignty to North Borneo and protesting British rule and administration thereof. Since the transferee acquires no better rights than the transferor, this weakens the present claim of the Republic of the Philippines.
(2) Even if the said heirs had a strong claim of sovereignty to North Borneo, our government should have advised them to file a petition or reservation to that effect before the United Nations, instead of agreeing to a transfer of such claim of sovereignty to the Republic of the Philippines. If the said heirs lose their case before the United Nations, there would be no loss of honor of prestige for the Republic of the Philippines. As it is now, if the belated claim of sovereignty of the Republic of the Philippines to a portion of North Borneo does not prosper in the United Nations, the damage to our national honor and prestige would be incalculable. We would appear as attempting to colonize North Borneo without any lawful or just cause, contrary to our vehement denunciations of colonialism and our loud demands that the grant of self-government or independence to subject peoples be accelerated. Even if the United Nations should sustain the belated Philippine claim of sovereignty to North Borneo, we stand to gain nothing because we are committed to speedily end our rule and administration there, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation proposed by President Macapagal.
(3) Contrary to the impression created in the minds of our people, the claim of sovereignty put forward by our government as transferee of the Sultan of Sulu does not cover the entire area of North Borneo, but only a portion thereof. This was admitted by the Philippine panel during the London talks, but the administration of President Macapagal has kept mum and has not brought this important fact to the attention of our people. During our joint committee meetings in Camp Murphy, I asked the members of the Philippine panel present if they could tell us the exact metes and bounds and the exact area of this portion of North Borneo claimed by our government but none could give us a positive answer. This was amazing in the extreme. When a man sues in court to recover title and possession to a piece of land, the first thing he has to prove in court is the identity of the land. But here is the administration of President Macapagal involving the honor and prestige of our government in a claim of sovereignty to a portion of North Borneo, without being able to tell us the identity of that portion. And yet, administration stalwarts have been daring the British to have the case tried and decided by the International Court of Justice.
From the compilation of documents submitted to us by Minister Benito Bautista of the Department of Foreign Affairs, I found that before Overbeck and Dent entered into the contract of January 12,1878 with the Sultan of Sulu, they had previously obtained from the Sultan of Brunei four other similar contracts on December 29,1877. As narrated by K. G. Tregonning in his book entitled Under Chartered Company Rule and borne out by the descriptions contained in the four contracts of the Sultan of Brunei.
"The Sultan (of Brunei), in three grants of territory from Gaya Bay on the west coast to the Sibuco River on the east; and the Pengeran Tumongong (heir to the Sultan of Brunei) in a grant of his west coast possessions, the rivers Kimanis and Benowi, ceded to Overbeck and Dent, with all the powers of sovereignty, some 28,000 square miles of territory, embracing 900 miles of North Bornean coastline, for a total yearly payment of Malayan $ 5,000." (op.cit. P-14)
In the later contract with the Sultan of Sulu, the territory ceded to Overbeck and Dent was from the Pandassan River on the west coast to the Sibuco River on the east, for which the Sultan of Sulu was to receive a yearly payment of Malayan $ 5,000. A look at the map of North Borneo will show that Gaya Bay is farther to the west than Pandassan River. So the territory ceded under the four contracts with the Sultan of Brunei was more extensive and embraced the territory ceded under the contract with the Sultan of Sulu. Why did Overbeck and Dent still contracted with the Sultan of Sulu for territory already ceded to them under the four contracts with the Sultan of Brunei? According to Professor Tregonning in his aforecited book, after Overbeck and Dent had negotiated the four contracts with the Sultan of Brunei, they learned later that the northeast coast, which comprised a large portion of the territory ceded by the Sultan of Brunei, was in the hands of the Sultan of Sulu who claimed to have received it from the Sultan of Brunei in 1704 in return for the help in suppressing a rebellion and it was for this reason that they negotiated the contract with the Sultan of Sulu on January 12,1878 (op. cit. pp. 11,14-15). From this it appears that the territory claimed and ceded by the Sultan of Sulu on January 12, 1878 was likewise claimed and had been previously ceded by the Sultan of Brunei on December 29,1877 and that Overbeck and Dent evaluated the rights acquired from the Sultan of Brunei to be three times greater than the rights acquired from the Sultan of Sulu, the yearly payment to the former being Malayan $ 15,000 and to the latter Malayan $ 5,000. It is small wonder that the administration of President Macapagal is at a loss to identify the portion of North Borneo subject of their claim of sovereignty,
Common concern
It should be the common concern of the Philippines and of all countries whose peoples believe in the free and democratic way of life, to see to it that Sarawak, Brunei and North Borneo, are not only speedily decolonized and granted self-government or independence, but also adequately safeguarded against the danger of communist infiltration and subversion once they become self-governing or independent.
The balance of power in Asia between the forces of freedom on the one hand and the forces of communism on the other, is in a very precarious and critical posture today. Laos has turned neutralist. The ruler of Cambodia has decided to align himself on the side of Red China. South Vietnam is facing a life and death struggle with the Viet Congs. India's borders have been invaded by Red China. If Sarawak, Brunei, North Borneo and Singapore, should be lost to the free world by their turning communist or neutralist, the peace and security of the free world countries in Asia including the Philippines would be gravely imperilled.
We in the Philippines are firmly and uncompromisingly against communism. Whether under the former Nacionalista administration or under the present Liberal administration, that has been our consistent policy. We are a religious people and we cannot accept a godless ideology. We want progress, but we do not want to achieve progress through dictatorship and violence; we want to achieve progress through freedom and peaceful reform.
In the fight between the forces of freedom and the forces of communism, we do not believe in being neutralist or non-aligned. We want to stand up and be counted on the side of the forces of freedom.
And because the military power of the forces of communism is great due to their tremendous human and material resources, no nation can resist and fight them alone and unaided. The forces of freedom must combine and cooperate militarily and economically in order to balance the military and economic power of the forces of communism. Thus, we have entered into defensive alliances like the mutual defense pact with the US and the SEATO pact.
British plan
The Federation of Malaysia is the British plan of giving self-government to Sarawak, Brunei and North Borneo and at the same time safeguard them against communist infiltration and subversion. Under the plan, Britain will relinquish sovereignty over Sarawak and North Borneo and withdraw protection over Brunei and then these three newly independent states will join the 11 states now composing the Federation of Malaya and Singapore in forming the Federation of Malaysia. In other words, the present Federation of Malaya will be enlarged by bringing in Singapore, Sarawak, Brunei and North Borneo as new members and as thus enlarged it will be renamed Federation of Malaysia. The present mutual defense pact between Britain and the Federation of Malaya will then be extended to this enlarged Federation of Malaysia.
The plan is to follow the same pattern by which Malaya was given independence on August 31,1957 and by means of a mutual defense pact with the former mother country (Britain), receive such military and economic aid to enable her to fight communist infiltration and subversion successfully.
Let us recall the history of Malaya. For a hundred years, Malaya was under British rule before she won her independence on August 31,1957. Malaya is a Federation of 11 states, two of which were formerly British colonies and the remaining nine were formerly protectorates. Under her constitution, these 11 states upon becoming independent agreed to form a Federation with a federal parliament composed of two houses in which each of the 11 states was given representation.
When she became independent in 1957, Malaya was faced with a grave internal problem of communist infiltration and subversion. In population, the Chinese is the second biggest in number, next only to the Malays, so that the danger of Chinese communist infiltration and subversion was real and acute. This danger had to be met realistically and the leaders of Malaya realized that it had to be fought not only with military but also with economic weapons, for which they needed British aid and cooperation. So, the leaders of Malaya evolved a five-year development plan to improve the livelihood of the people so that they will not be enticed by communist propaganda harping on the poverty of the masses and promising a classless society where there will be no poor and no rich. This five-year development plan involved an expenditure of Malayan $ 1,358,000,000 and the British government agreed to give extensive financial help to it and the plan was so well implemented that Malaya has achieved an economic progress next only to Japan in the whole Far East as shown by her per capita income which is second only to Japan. Also, there was a British grant of Malayan $ 114 million for the establishment of the federal armed forces of Malaya and for the first three years a yearly grant of Malayan $ 25 million to help Malaya deal with the terrorist problem. Through these economic and military measures, Malaya under the leadership of Tungku Abdul Rahman was able to break the communist backbone in that country, in the same way that through similar economic and military measures, Magsaysay was able to break the communist backbone here in our country, so that the names of Abdul Rahman and Magsaysay rank high in the roster of successful communist fighters in Asia.
Because of the success of the Federation of Malaya under the leadership of Abdul Rahman and with the British military and economic aid to fight communist infiltration and subversion, it is also expected that the enlarged Federation of Malaysia under the same leadership of Abdul Rahman and with continued British military and economic aid will be able to meet and overcome any communist attempt to capture Singapore, Sarawak, Brunei and North Borneo through infiltration and subversive activities.
It is pertinent to point out that Singapore, Sarawak, Brunei and North Borneo are outside the SEATO area so that they cannot rely on the SEATO for protection against communism. Neither can they rely on US military or economic aid, since the present trend in American foreign policy as manifested in Senator Mansfield's position is to cut down on American foreign aid by not giving to those countries to which the US has not heretofore given aid and to gradually reduce the amount as to those countries to which the US has been giving aid. It is only Britain which can be expected to extend military and economic aid to these countries once they become independent because Britain is their former mother country and because of the close trade and economic ties that will have to continue even after the severance of political ties between' them.
Alternative plan
Let me now turn to the Greater Confederation of Malay States proposed by President Macapagal. Is this a better substitute to the Malaysia plan as an instrumentality to make Sarawak, Brunei and North Borneo safe and secure against communist infiltration and subversion once these countries become self-governing or independent? According to President Macapagal, it is a better substitute. For my part, I cannot say whether it is a better substitute or not, for the simple reason that its proponents cannot give us any information as to what concretely and specifically are the plans and the ways and means by which this Greater Malayan Confederation is expected to help protect Sarawak, Brunei and North Borneo against communist infiltration and subversion. All that we are told is that the proposed members of are Malaya, Singapore, Sarawak, Brunei, North Borneo and the Philippines. According to President Macapagal in a recent interview with a correspondent of Agence de France, all that he could say was that the proposed members will retain their separate sovereignties. This means that the Philippine claim to a portion of North Borneo will be given so that North Borneo may become independent and sovereign and thus qualify to be a memberof this Greater Malayan Confederation. I have asked before and I now again ask: Is it the plan that this Greater Malayan Confederation will not seek any outside military or economic aid either from Britain or from the US and that each member state will just rely on her own military and economic resources to fight communist infiltration and subversion? Is the Philippines ready to extend military and economic aid to North Borneo, Brunei and Sarawak and if so, how much is the present administration willing to appropriate for this purpose? What joint and common measures will the member states take in order to help each other in fighting communist infiltration and subversion? Will there be a common armed force? Will there be a common economic program? Or will this be a purely social club? These questions are relevant, material and pertinent and must be answered by President Macapagal and the proponent of the Greater Malayan Confederation, before they can expect any Filipino to rally to its support and before they can expect the proposed member-states of such Confederation to be convinced that it is a better and more effective instrument than the Malaysia plan to combat and overcome the communist menace in their respective territories. I regret to report that in the joint committee hearings of the Senate Committee on Foreign Relations and National Defense and Security, none of the defense and foreign officials present could give any answer to these questions and they confessed to our amazement and surprise that the detailed plans and objectives of this projected Greater Malayan Confederation have not been spelled out.
Conclusions
From the foregoing facts and considerations, I submit to the Senate and to our people the following conclusions:
(1) If the administration of President Macapagal seriously believes that the Philippine claim of sovereignty to a portion of Nj&rth Borneo should be prosecuted to the bitter end, it must be prepared to establish the identity of that portion whether the case is brought before the International Court of Justice or before the United Nations.
(2) If the Philippines lose its case, the damage to the honor and prestige of our Republic would be incalculable. We would appear as having attempted to colonize a portion of North Borneo without any lawful or just cause, forgetting our colonialism and our loud demands for accelerating the grant of self-government or independence to subject peoples especially those in Asia.
(3) Even if the Philippines win its case, we stand to gain nothing because under the United Nations charter, the Bandung Conference declaration and the 1960 decolonization resolution of the United Nations General Assembly, we have to give up our rule and administration to the portion of North Borneo we are claiming, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state. In this connection, it is worthy of note that judging from press reports of Filipino newspapermen who had gone to North Borneo, the popular reaction there to our claim of sovereignty is one of surprise and resentment rather than sympathy and support.
(4) If President Macapagal honestly believes that the Federation of Malaysia plan is not according with the freely expressed will and wishes of the people of North Borneo, despite the information recently given by the Mayor of Jesselton while here as an ECAFE delegates that 96 out of 111 representatives elected to the legislative council of North Borneo last December favor Malaysia, he can raise the question before the United Nations and ask that a plebiscite be held under the auspices of the world organization to determine whether the people of North Borneo really favor Malaysia or not. And if Indonesia insists that the peoples of Sarawak, Brunei and North Borneo are against Malaysia, we should point out to her that there is available UN machinery and there is the peaceful remedy of asking for a plebiscite under the auspices of the United Nations, which renders unnecessary resort to war or use offeree and violence.
(5) If President Macapagal honestly believes that his proposed Greater Malayan Confederation is a better substitute to the Malaysia plan to defend and protect ourselves and the other Malayan peoples of Asia against the danger of communist infiltration and subversion, then he must abandon talking in platitudes and generalities and at once spell out concretely and specifically, the ways and means, the military and economic aid if any by which the Greater Malayan Confederation expects to help the people of North Borneo, Brunei and Sarawak to fight and overcome successfully the forces of communism once they become self-governing or independent.
(6) Our people must be told and made to realize that if we are to be consistent with our avowed policy of opposing communism firmly and uncompromisingly, then for the peace and security not only of ourselves but of our free world allies in Asia, we must see to it that North Borneo, Brunei and Sarawak, remain on the side of the free would and not turn communist or neutralist, once they become self-governing or independent.
(7) Rather than prosecute the Philippine claim of sovereignty to a portion of North Borneo to the bitter end. I for one believe in all sincerity that under the present circumstances, the better course to follow is for our government to inform the United Nations in due time, i.e., when the Federation of Malaysia plan is submitted for consideration in the United Nations that we are voluntarily relinquishing whatever claim of sovereignty we may have to any portion of North Borneo in order to accelerate the changing of its status from a non-self governing territory to that of a self-governing or independent state and that we favor holding a plebiscite under United Nations auspices to give the people of North Borneo the opportunity to freely express their will and wishes as to whether they want to join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state.
Annex A:
Privilege Speech of Senator Lorenzo Sumulong on Philippines' North Borneo (Sabah) Claim
Philippine Senate, March 25, 1963.


I have refrained from discussing on the floor of the Senate the Malaysia plan or the alternative plan of a Greater Malayan Confederation proposed by President Macapagal in connection with the Philippine claim of sovereignty to a portion of North Borneo, while the Senate Committees on Foreign Relations and National Defense and Security were holding joint closed-door hearings in Camp Murphy.
As your Chairman of the Committee on Foreign Relations, I had made my own studies and researches, but I thought that there might be new facts and considerations which our defense and foreign affairs officials might bring to our attention during the briefing.
Now that the briefing is over and the administration experts have submitted to the two Committees all the facts within their knowledge and possession, I believe it is already proper, nay, I believe it is my duty to submit for the consideration of the entire Senate and of our people the facts and considerations which I believe are material and necessary to the formation and crystallization of an intelligent opinion about the two plans. In so doing, I want to make clear the responsibility for the facts and considerations I am about to present is my own.
I want to make clear that I am always subject to correction. If my facts and considerations are wrong, I would be ready to admit and correct my mistakes. And I do hope that others will do likewise.
Our commitments
Under the United Nations Charter, it is the duty of every colonial power administering non-self-government or independence and until that people has been made self-governing or independent, it is the duty of the colonial power to submit to the United Nations every year a report of its administration of the territory.
The duty of the administering power to prepare the non-self-governing territory for self-government or independence is provided for in Chapter XI, Article 73 b of the United Nations Charter which makes it the duty of the administering power "to develop self-government, to take due account of the political aspirations of the (non-self-governing) peoples and to assist them in the progressive development of their free political institutions."
No RP Protest
Since the organization of the United Nations in 1945, Britain in accordance with the obligations imposed by the Charter has declared herself to be the colonial power administering Sarawak as British colony and has been submitting to the United Nations every year a report of her administration of these three non-self-governing territories. During all that time, the Philippines as a member of the United Nations has not put forward any claim of sovereignty over North Borneo, nor has the Philippines registered any reservation or protest to the report submitted by Britain to the United Nations every year as the administering power over North Borneo. It was only in December of last year (1962) that the Philippine delegation, during the consideration of the yearly report of the British administration over North Borneo in the Trusteeship Committee, made a reservation contesting for the first time the right of the British to rule and administer North Borneo.
Belated claim
Why was the Philippine claim of sovereignty to North Borneo so tardily presented in the United Nations? The answer is that North Borneo is not a part of the national territory of the Philippines as defined and delimited in our Constitution. When the United Nations was organized in 1945, the claimants to North Borneo was not the Philippines but the heirs of the late Sultan Jamalul Kiram who died in 1936. If the said heirs had any claims to sovereignty over North Borneo — as distinguished from their proprietary claims — they could have filed a petition or a reservation to the United Nations protesting against British rule and administration over North Borneo, but they did not file any such petition or reservation. It was only in February of last year (1962) that the said heirs informed our Department of Foreign Affairs that they were claiming sovereignty to North Borneo and they offered to turn over such claim of sovereignty to the Republic of the Philippines, reserving however to themselves their proprietary claims.
This offer was accepted by President Macapagal and to give semblance of legality to the transfer of sovereignty from the said heirs to the Republic of the Philippines, in September of last year (1962) out of the several surviving heirs of Sultan Jamalul Kiram who died in 1936, Esmail Kiram was proclaimed the new Sultan of Sulu claiming to possess all the attributes and prerogatives of a sovereign ruler and as such he executed a deed of cession of his alleged claim of sovereignty to North Borneo in favor of the Republic of the Philippines.
A mistake
I am and have always been in favor of our government giving every possible support to the proprietary claims of the heirs of the late Sultan Jamalul Kiram. But I have always believed as I still believe that it was a mistake for the President Macapagal to have agreed to such transfer of the claim of sovereignty from the said heirs to the Republic of the Philippines for the following reasons:
(1) The said heirs had never filed a petition or reservation before the United Nations claiming sovereignty to North Borneo and protesting British rule and administration thereof. Since the transferee acquires no better rights than the transferor, this weakens the present claim of the Republic of the Philippines.
(2) Even if the said heirs had a strong claim of sovereignty to North Borneo, our government should have advised them to file a petition or reservation to that effect before the United Nations, instead of agreeing to a transfer of such claim of sovereignty to the Republic of the Philippines. If the said heirs lose their case before the United Nations, there would be no loss of honor of prestige for the Republic of the Philippines. As it is now, if the belated claim of sovereignty of the Republic of the Philippines to a portion of North Borneo does not prosper in the United Nations, the damage to our national honor and prestige would be incalculable. We would appear as attempting to colonize North Borneo without any lawful or just cause, contrary to our vehement denunciations of colonialism and our loud demands that the grant of self-government or independence to subject peoples be accelerated. Even if the United Nations should sustain the belated Philippine claim of sovereignty to North Borneo, we stand to gain nothing because we are committed to speedily end our rule and administration there, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation proposed by President Macapagal.
(3) Contrary to the impression created in the minds of our people, the claim of sovereignty put forward by our government as transferee of the Sultan of Sulu does not cover the entire area of North Borneo, but only a portion thereof. This was admitted by the Philippine panel during the London talks, but the administration of President Macapagal has kept mum and has not brought this important fact to the attention of our people. During our joint committee meetings in Camp Murphy, I asked the members of the Philippine panel present if they could tell us the exact metes and bounds and the exact area of this portion of North Borneo claimed by our government but none could give us a positive answer. This was amazing in the extreme. When a man sues in court to recover title and possession to a piece of land, the first thing he has to prove in court is the identity of the land. But here is the administration of President Macapagal involving the honor and prestige of our government in a claim of sovereignty to a portion of North Borneo, without being able to tell us the identity of that portion. And yet, administration stalwarts have been daring the British to have the case tried and decided by the International Court of Justice.
From the compilation of documents submitted to us by Minister Benito Bautista of the Department of Foreign Affairs, I found that before Overbeck and Dent entered into the contract of January 12,1878 with the Sultan of Sulu, they had previously obtained from the Sultan of Brunei four other similar contracts on December 29,1877. As narrated by K. G. Tregonning in his book entitled Under Chartered Company Rule and borne out by the descriptions contained in the four contracts of the Sultan of Brunei.
"The Sultan (of Brunei), in three grants of territory from Gaya Bay on the west coast to the Sibuco River on the east; and the Pengeran Tumongong (heir to the Sultan of Brunei) in a grant of his west coast possessions, the rivers Kimanis and Benowi, ceded to Overbeck and Dent, with all the powers of sovereignty, some 28,000 square miles of territory, embracing 900 miles of North Bornean coastline, for a total yearly payment of Malayan $ 5,000." (op.cit. P-14)
In the later contract with the Sultan of Sulu, the territory ceded to Overbeck and Dent was from the Pandassan River on the west coast to the Sibuco River on the east, for which the Sultan of Sulu was to receive a yearly payment of Malayan $ 5,000. A look at the map of North Borneo will show that Gaya Bay is farther to the west than Pandassan River. So the territory ceded under the four contracts with the Sultan of Brunei was more extensive and embraced the territory ceded under the contract with the Sultan of Sulu. Why did Overbeck and Dent still contracted with the Sultan of Sulu for territory already ceded to them under the four contracts with the Sultan of Brunei? According to Professor Tregonning in his aforecited book, after Overbeck and Dent had negotiated the four contracts with the Sultan of Brunei, they learned later that the northeast coast, which comprised a large portion of the territory ceded by the Sultan of Brunei, was in the hands of the Sultan of Sulu who claimed to have received it from the Sultan of Brunei in 1704 in return for the help in suppressing a rebellion and it was for this reason that they negotiated the contract with the Sultan of Sulu on January 12,1878 (op. cit. pp. 11,14-15). From this it appears that the territory claimed and ceded by the Sultan of Sulu on January 12, 1878 was likewise claimed and had been previously ceded by the Sultan of Brunei on December 29,1877 and that Overbeck and Dent evaluated the rights acquired from the Sultan of Brunei to be three times greater than the rights acquired from the Sultan of Sulu, the yearly payment to the former being Malayan $ 15,000 and to the latter Malayan $ 5,000. It is small wonder that the administration of President Macapagal is at a loss to identify the portion of North Borneo subject of their claim of sovereignty,
Common concern
It should be the common concern of the Philippines and of all countries whose peoples believe in the free and democratic way of life, to see to it that Sarawak, Brunei and North Borneo, are not only speedily decolonized and granted self-government or independence, but also adequately safeguarded against the danger of communist infiltration and subversion once they become self-governing or independent.
The balance of power in Asia between the forces of freedom on the one hand and the forces of communism on the other, is in a very precarious and critical posture today. Laos has turned neutralist. The ruler of Cambodia has decided to align himself on the side of Red China. South Vietnam is facing a life and death struggle with the Viet Congs. India's borders have been invaded by Red China. If Sarawak, Brunei, North Borneo and Singapore, should be lost to the free world by their turning communist or neutralist, the peace and security of the free world countries in Asia including the Philippines would be gravely imperilled.
We in the Philippines are firmly and uncompromisingly against communism. Whether under the former Nacionalista administration or under the present Liberal administration, that has been our consistent policy. We are a religious people and we cannot accept a godless ideology. We want progress, but we do not want to achieve progress through dictatorship and violence; we want to achieve progress through freedom and peaceful reform.
In the fight between the forces of freedom and the forces of communism, we do not believe in being neutralist or non-aligned. We want to stand up and be counted on the side of the forces of freedom.
And because the military power of the forces of communism is great due to their tremendous human and material resources, no nation can resist and fight them alone and unaided. The forces of freedom must combine and cooperate militarily and economically in order to balance the military and economic power of the forces of communism. Thus, we have entered into defensive alliances like the mutual defense pact with the US and the SEATO pact.
British plan
The Federation of Malaysia is the British plan of giving self-government to Sarawak, Brunei and North Borneo and at the same time safeguard them against communist infiltration and subversion. Under the plan, Britain will relinquish sovereignty over Sarawak and North Borneo and withdraw protection over Brunei and then these three newly independent states will join the 11 states now composing the Federation of Malaya and Singapore in forming the Federation of Malaysia. In other words, the present Federation of Malaya will be enlarged by bringing in Singapore, Sarawak, Brunei and North Borneo as new members and as thus enlarged it will be renamed Federation of Malaysia. The present mutual defense pact between Britain and the Federation of Malaya will then be extended to this enlarged Federation of Malaysia.
The plan is to follow the same pattern by which Malaya was given independence on August 31,1957 and by means of a mutual defense pact with the former mother country (Britain), receive such military and economic aid to enable her to fight communist infiltration and subversion successfully.
Let us recall the history of Malaya. For a hundred years, Malaya was under British rule before she won her independence on August 31,1957. Malaya is a Federation of 11 states, two of which were formerly British colonies and the remaining nine were formerly protectorates. Under her constitution, these 11 states upon becoming independent agreed to form a Federation with a federal parliament composed of two houses in which each of the 11 states was given representation.
When she became independent in 1957, Malaya was faced with a grave internal problem of communist infiltration and subversion. In population, the Chinese is the second biggest in number, next only to the Malays, so that the danger of Chinese communist infiltration and subversion was real and acute. This danger had to be met realistically and the leaders of Malaya realized that it had to be fought not only with military but also with economic weapons, for which they needed British aid and cooperation. So, the leaders of Malaya evolved a five-year development plan to improve the livelihood of the people so that they will not be enticed by communist propaganda harping on the poverty of the masses and promising a classless society where there will be no poor and no rich. This five-year development plan involved an expenditure of Malayan $ 1,358,000,000 and the British government agreed to give extensive financial help to it and the plan was so well implemented that Malaya has achieved an economic progress next only to Japan in the whole Far East as shown by her per capita income which is second only to Japan. Also, there was a British grant of Malayan $ 114 million for the establishment of the federal armed forces of Malaya and for the first three years a yearly grant of Malayan $ 25 million to help Malaya deal with the terrorist problem. Through these economic and military measures, Malaya under the leadership of Tungku Abdul Rahman was able to break the communist backbone in that country, in the same way that through similar economic and military measures, Magsaysay was able to break the communist backbone here in our country, so that the names of Abdul Rahman and Magsaysay rank high in the roster of successful communist fighters in Asia.
Because of the success of the Federation of Malaya under the leadership of Abdul Rahman and with the British military and economic aid to fight communist infiltration and subversion, it is also expected that the enlarged Federation of Malaysia under the same leadership of Abdul Rahman and with continued British military and economic aid will be able to meet and overcome any communist attempt to capture Singapore, Sarawak, Brunei and North Borneo through infiltration and subversive activities.
It is pertinent to point out that Singapore, Sarawak, Brunei and North Borneo are outside the SEATO area so that they cannot rely on the SEATO for protection against communism. Neither can they rely on US military or economic aid, since the present trend in American foreign policy as manifested in Senator Mansfield's position is to cut down on American foreign aid by not giving to those countries to which the US has not heretofore given aid and to gradually reduce the amount as to those countries to which the US has been giving aid. It is only Britain which can be expected to extend military and economic aid to these countries once they become independent because Britain is their former mother country and because of the close trade and economic ties that will have to continue even after the severance of political ties between' them.
Alternative plan
Let me now turn to the Greater Confederation of Malay States proposed by President Macapagal. Is this a better substitute to the Malaysia plan as an instrumentality to make Sarawak, Brunei and North Borneo safe and secure against communist infiltration and subversion once these countries become self-governing or independent? According to President Macapagal, it is a better substitute. For my part, I cannot say whether it is a better substitute or not, for the simple reason that its proponents cannot give us any information as to what concretely and specifically are the plans and the ways and means by which this Greater Malayan Confederation is expected to help protect Sarawak, Brunei and North Borneo against communist infiltration and subversion. All that we are told is that the proposed members of are Malaya, Singapore, Sarawak, Brunei, North Borneo and the Philippines. According to President Macapagal in a recent interview with a correspondent of Agence de France, all that he could say was that the proposed members will retain their separate sovereignties. This means that the Philippine claim to a portion of North Borneo will be given so that North Borneo may become independent and sovereign and thus qualify to be a memberof this Greater Malayan Confederation. I have asked before and I now again ask: Is it the plan that this Greater Malayan Confederation will not seek any outside military or economic aid either from Britain or from the US and that each member state will just rely on her own military and economic resources to fight communist infiltration and subversion? Is the Philippines ready to extend military and economic aid to North Borneo, Brunei and Sarawak and if so, how much is the present administration willing to appropriate for this purpose? What joint and common measures will the member states take in order to help each other in fighting communist infiltration and subversion? Will there be a common armed force? Will there be a common economic program? Or will this be a purely social club? These questions are relevant, material and pertinent and must be answered by President Macapagal and the proponent of the Greater Malayan Confederation, before they can expect any Filipino to rally to its support and before they can expect the proposed member-states of such Confederation to be convinced that it is a better and more effective instrument than the Malaysia plan to combat and overcome the communist menace in their respective territories. I regret to report that in the joint committee hearings of the Senate Committee on Foreign Relations and National Defense and Security, none of the defense and foreign officials present could give any answer to these questions and they confessed to our amazement and surprise that the detailed plans and objectives of this projected Greater Malayan Confederation have not been spelled out.
Conclusions
From the foregoing facts and considerations, I submit to the Senate and to our people the following conclusions:
(1) If the administration of President Macapagal seriously believes that the Philippine claim of sovereignty to a portion of Nj&rth Borneo should be prosecuted to the bitter end, it must be prepared to establish the identity of that portion whether the case is brought before the International Court of Justice or before the United Nations.
(2) If the Philippines lose its case, the damage to the honor and prestige of our Republic would be incalculable. We would appear as having attempted to colonize a portion of North Borneo without any lawful or just cause, forgetting our colonialism and our loud demands for accelerating the grant of self-government or independence to subject peoples especially those in Asia.
(3) Even if the Philippines win its case, we stand to gain nothing because under the United Nations charter, the Bandung Conference declaration and the 1960 decolonization resolution of the United Nations General Assembly, we have to give up our rule and administration to the portion of North Borneo we are claiming, grant its people self-government or independence and respect their will and wishes as to whether they will join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state. In this connection, it is worthy of note that judging from press reports of Filipino newspapermen who had gone to North Borneo, the popular reaction there to our claim of sovereignty is one of surprise and resentment rather than sympathy and support.
(4) If President Macapagal honestly believes that the Federation of Malaysia plan is not according with the freely expressed will and wishes of the people of North Borneo, despite the information recently given by the Mayor of Jesselton while here as an ECAFE delegates that 96 out of 111 representatives elected to the legislative council of North Borneo last December favor Malaysia, he can raise the question before the United Nations and ask that a plebiscite be held under the auspices of the world organization to determine whether the people of North Borneo really favor Malaysia or not. And if Indonesia insists that the peoples of Sarawak, Brunei and North Borneo are against Malaysia, we should point out to her that there is available UN machinery and there is the peaceful remedy of asking for a plebiscite under the auspices of the United Nations, which renders unnecessary resort to war or use offeree and violence.
(5) If President Macapagal honestly believes that his proposed Greater Malayan Confederation is a better substitute to the Malaysia plan to defend and protect ourselves and the other Malayan peoples of Asia against the danger of communist infiltration and subversion, then he must abandon talking in platitudes and generalities and at once spell out concretely and specifically, the ways and means, the military and economic aid if any by which the Greater Malayan Confederation expects to help the people of North Borneo, Brunei and Sarawak to fight and overcome successfully the forces of communism once they become self-governing or independent.
(6) Our people must be told and made to realize that if we are to be consistent with our avowed policy of opposing communism firmly and uncompromisingly, then for the peace and security not only of ourselves but of our free world allies in Asia, we must see to it that North Borneo, Brunei and Sarawak, remain on the side of the free would and not turn communist or neutralist, once they become self-governing or independent.
(7) Rather than prosecute the Philippine claim of sovereignty to a portion of North Borneo to the bitter end. I for one believe in all sincerity that under the present circumstances, the better course to follow is for our government to inform the United Nations in due time, i.e., when the Federation of Malaysia plan is submitted for consideration in the United Nations that we are voluntarily relinquishing whatever claim of sovereignty we may have to any portion of North Borneo in order to accelerate the changing of its status from a non-self governing territory to that of a self-governing or independent state and that we favor holding a plebiscite under United Nations auspices to give the people of North Borneo the opportunity to freely express their will and wishes as to whether they want to join the Federation of Malaysia or the Greater Malayan Confederation or exist as a separate independent state.

The Philippine Claim to North Borneo: A Statement of Facts.

THE NORTH BORNEO QUESTION

There is ample justification, I believe, for the statement that emotionalism has beclouded and confused the North Borneo question. There are Filipinos who summarily adopt the my-country-right-or-wrong attitude; in specific terms, they tell us, "Let us have North Borneo by all means," little realizing that by such a hasty, imprudent posture they render no little disservice to the very cause they propose to champion.

At the other end of the line are the faint-hearted souls who cherish a host of vague, nameless fears, and who have not stopped imagining the catastrophic, nuclear wars into which the Philippines would be drawn should it so much as attempt to press the claim to North Borneo, regardless of the merit or validity of such a claim. Responsible quarters confess to no little measure of amusement over the unrestrained enthusiasm, on the one hand, of home-grown nationalists in supporting claims — without adequate study of their validity — of sister countries in Asia over territories held by Western powers, and their unconcealed dread, on the other hand, in espousing a claim — without the slightest inquiry into its possible merit — over a portion of the globe's surface which may belong as a matter of law and equity to Filipinos.

A good number of friends have asked me to deliver what they call an "impassioned speech" on the question, but I had felt that the time was not ripe and that the whole issue should be studied in an atmosphere of dispassion and restraint. I felt and still feel that the restoration of prudence and sobriety in the conduct of our foreign policy is a matter of cardinal importance. In the language of one world statesman, foreign policy is not only what we do, but how we do it.

If the Philippine claim to North Borneo is valid, we should — despite our standing as a young, physically weak nation — institute and press the claim in accordance with the accepted peaceful modes of settlement prescribed by international law and procedure. If, despite the assumed knowledge of the validity and justice of the Philippine claim, we fold our arms in mortal fear, we should lose not merely the respect of all law-abiding nations (the United Kingdom and the Asian countries in particular), but also a considerable measure of self-respect — which, to my mind, is more important — and, by our own inaction and timidity, lose our faith in the ultimate validity of that which is right and just. If, on the other hand, we come to the conclusion that the Philippine claim is without basis, then we should say so and let the British Government know our stand. Such candor and probity will undoubtedly inspire the respect of the entire free world.

It is partly because of the well known regard of the British Government for the rule of law, and partly because of our deep-seated respect for the British institutions of law and order, that I have requested the Department of Foreign Affairs to make a careful, thoroughgoing study of the question and, if morally convinced of the merit of the Philippine claim, to institute and prosecute this claim through all peaceful processes, including diplomatic negotiations, good offices, commission of inquiry, arbitration, or resort to the International Court of Justice. There need be no fear of breach of amicable relations between the United Kingdom and the Philippines. Both are members in good standing of the United Nations; both are committed to the rule of law and to the necessity of maintaining a society of free men. On the other hand, the peaceful solution of the North Borneo question may well be a distinct Anglo-Philippine contribution, so sorely needed at a time such as this, where instead of a precarious equilibrium of terror as a temporary stabilizing factor in international relations, there should emerge more instances of healthy respect for law and for more voluntary arrangements among nations so that the moral force of right may be made to prevail over the right of might.

Friendly countries will therefore understand why the Filipinos view with deep concern any move on the part of the United Kingdom, in advance of the institution of such a claim, to render academic the North Borneo question through extra-legal means. For instance, a dispatch from Kuala Lumpur. Malaya, published in the New York Times issue of February 7, 1962. states and I quote:

"KUALA LUMPUR, Malaya, Feb. 6. — A political merger under a strong central government has been recommended by the Malaysian Solidarity Committee.

''The five-state merger would create a federation of Malaya, Singapore Island — which is linked to Malaya by a three-quarter mile causeway — and the Northern Borneo territories of Sarawak, Brunei and British North Borneo.

"A British and Malayan commission, headed by Lord Cobbold, former Governor of the Bank of England, is due to arrive in Borneo soon to inquire into public opinion in Sarawak and British North Borneo concerning the merger. Both are crown colonies. Brunei is a British protectorate, and its Government will deal directly with the Federation of Malaya and with London."

One may well inquire: — why this plan of a merger at a time such as this? At any rate, and without considering such a development, let us consider the facts.

1 . There is no controversy regarding one historical fact: namely, that in 1850, the Sultan of Brunei, in gratitude for the aid he received during war from the Sultan of Sulu, ceded North Borneo to the latter.

II. In January, 1878, the Sultan of Sulu entered into an agreement with two representatives of a private British company, namely, Gustavus Baron de Overbeck and Alfred Dent. It is at this point where controversy arises.

There are, to be sure, several versions of the agreement and quite a number of translations of said agreement. One group of heirs of the Sultan of Sulu submitted a certified translation of a Spanish text of the agreement, dated January 4, 1878, which in turn is a translation of the original in Arabic. Under this document, the Sultan of Sulu merely concluded a contract of lease with Baron de Overbeck and Alfred Dent, and granted to Mr. Overbeck the title of "Datto Padajara Rajah de Sandakan" as long as he might live, with the right to levy taxes on the said land, exploit its ores, forest products and animals, administer justice and collect dues and taxes from the traders of said towns. There are also in the files of the Department of Foreign Affairs several English translations (Conklin translation; Saleeby translation on the "History of Sulu" pp. 225-233; Decision of High Court of Borneo citing translation in "Treaties and Engagements affecting the Malay States," by Maxwell and Gibson), which invariably use the terms "lease,' "cede" and "grant."

On the other hand, a document purporting to be the British text of the agreement, kept in the files of the British North Borneo Company in London, would seem to show that the Sultan of Sulu ceded and granted to Overbeck and Dent on January 22, 1878,

"all the rights and powers belonging to me over all the territories and lands being tributary to us on the mainland on the Island of Borneo"

in consideration of a yearly compensation of 5,000 dollars, together "with all other powers and rights usually exercised by and belonging to Sovereign Rulers, and which we hereby delegate to him of our own free and sovereign will."

III. On November 1, 1881, the British Government granted a Charter to the British North Borneo Company which, after a recital of the terms of agreement between the Sultan of Sulu and the two representatives of the Company, empowered the Company to acquire full benefit of the said "grant" and "benefits." Accordingly, Baron de Overbeck and Alfred Dent turned over their rights to the British North Borneo Company, which continued paying the stipulated 5,000 Malayan dollars.

IV. In 1915, Governor Frank Carpenter, head of the Mindanao and Sulu division of the Philippine Government, defined the stand of the United States vis-a-vis the Sultan's temporal and ecclesiastical jurisdiction over the territories of the Sultanate beyond American jurisdiction, particularly those in North Borneo. He stated and I quote:

"It is necessary, however, that there be clearly of official record the fact that the termination of the temporal sovereignty of the Sultanate of Sulu within the 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 U.S. 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 (known) as the British North Borneo Company."

V. In 1939. a group of heirs of the Sultan filed suit in the court of North Borneo against the Government of North Borneo and the British North Borneo Company for the recovery of the stipulated annual payments. Both defendants admitted their obligation to pay, the only issue being — in view of reported dispute among the heirs — to whom payment was to be made. The High Court of the State of North Borneo, through Chief Justice Macaskie, rendered judgment in favor of the heirs on December 18, 1939.

Crucial Question:

VI. On July 10, 1946, six days after the Philippines became independent, the British Government, by virtue of an alleged agreement between the Secretary of State for the colonies and the British North Borneo Company dated June 6, 1946 — whereby the Company "have transferred and ceded all the said rights, powers and interests to the Crown with effect from the 15th day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory, should thereupon become part of His Majesty's dominions" — announced, by what is now known as the "North Borneo Cession Order," that from the 15th day of July, 1946, "the State of North Borneo shall be annexed to and shall form part of His Majesty's dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo."

VII. On February 26, 1947, former Governor General Francis Burton Harrison (as Special Adviser on Foreign Affairs to the Philippine Government), in a special report to the President of the Philippines, considered this an act of political aggression, "which should be promptly repudiated by the Government," since it was done by the British Government "unilaterally and without special notice to the Sultanate of Sulu nor consideration of their legal rights." He added:

"The proposal to lay the case before the United Nations should bring the whole matter before the bar of public opinion.

"Never in history has there been given any people such an opportunity to secure justice by an appeal to the enlightened conscience of mankind."

VIII. In 1957, the heirs of the Sultan of Sulu issued a proclamation declaring the termination of the lease contract over the territory in question effective January 22, 1958. This declaration was served on the British Government. Since then, the heirs have made claims upon the British Government for the return of the territory, but their claims have been disregarded.

The crucial question, then, is one of ownership: Is ownership vested in the United Kingdom? Does the Philippines have any right to claim North Borneo?

In discussing this, I have taken careful note of the statements of the highest British officials and considered the views of English authorities on international law. In this way, we avoid pointless controversy since the British Government cannot possibly dispute, under the principle of estoppel, its own official stand. There may be a lot of wrangling over what is the authentic version of the agreement of 1878, but there can be no debate on the official British stand on that agreement.

At the time the agreement was entered into in 1878, the British North Borneo Company had no legal personality whatever. It was incorporated by Royal Charter only on November 1, 1881. It is important to note this, since admittedly in 1878, North Borneo was not under the territorial supremacy of any member of the Family of Nations.

Overbeck and Dent, therefore, acquired rights over North Borneo merely as private individuals and no more. Their purported acquisition of territory and "sovereignty" was therefore beyond the pale of International Law. Did the incorporation by Royal Charter of the British North Borneo Company in 1881 create a trading company with sovereign rights — even from the English viewpoint — over North Borneo? This was the very bone of contention between the Spanish and Dutch Governments, on the one hand, and the British Government, on the other, soon after the Royal Charter was granted the British North Borneo Co. It is a matter of record that the British Government had declared that it did not intend to acquire sovereign rights in North Borneo. But the Spanish and Dutch Governments protested that such a declaration was inconsistent with the grant of a Royal Charter to the British North Borneo Company, "invested with sovereign rights by the Native Chiefs of North Borneo, and subject, as regards the exercise of these rights, to the Supreme authority of Her Britannic Majesty's Government." The British Foreign Minister, Lord Earl Granville, in a correspondence to the British Minister at Madrid, Mr. Morier (No. 197), dated January 7, 1882, recapitulated "the circumstances under which Her Majesty's Government acceded to the application of the Company for Incorporation by Royal Charter," drew attention "to the special character of that Charter," and explained "its legal effect." Lord Granville said the British North Borneo Company was in fact established under three Charters: (1) the Charter and territorial concession from the Sultan of Sulu; (2) the Charter and territorial concession from the Sultan of Brunei; and (3) the British Charter of incorporation. Note the following significant passages from Lord Granville's correspondence:

"The first two Charters, from the Sultans of Sulu and Brunei, are those under which the Company derive their title to the possession of the territories in question, and their authority to administer the government of those territories by delegation from the Sultans.

"The third Charter is the British Charter under which the Company have obtained incorporation and a recognition of her Majesty's Government of their title to the territories granted. In return for incorporation by Royal Charter, and for the recognition of the Concessions, the Company have surrendered to Her Majesty's Government various powers of control over their proceedings which, though of a negative character only, are sufficient for the prevention by Her Majesty's Government of any abuse in the exercise of the authority conferred by the Sultans. It is important to bear in mind that no such control would have been reserved to the Crown had the Company taker, incorporation in the usual manner by registration under the Companies Acts, and elected to follow their own course independently of Government support.

"The British Charter therefore differs essentially from the previous Charters granted to the East India 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 confers 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 Sultans in whom the sovereignty remains vested. It differs also from previous Charters, in that it prohibits instead of granting a general monopoly of trade."

In thus differentiating the status of the British North Borneo Company, Lord Granville stated that "after very careful consideration of all the circumstances of the case Her Majesty's Government decided that the Charter should be granted, and you will perceive from an examination of its provisions that its effect is to restrict and curtail the powers of the Company and not to create or enlarge them."

In similarly repudiating the Dutch contention, Lord Granville stated that the territories "will be administered by the Company under the sovereignly of the Sultans of Brunei and Sulu, to whom they have agreed to pay a yearly tribute," and that "the British Government assumes no sovereign rights whatever in Borneo."

Much the same disclaimer was sounded by the famous Prime Minister, William Ewart Gladstone. Speaking in the House of Commons, he acknowledged that the "remarkable powers" obtained by the British North Borneo Company involved the "essence of sovereignty" but they were "covered by the Suzereignty of the Native Chief." He declared that no greater obligation rested upon the Government to protect the Company than "to protect any other subject who might be in pursuit of objects not unlawful."

These authoritative statements show, in brief:

1 . that Overbeck and Dent were not authorized by the British Government to acquire and administer North Borneo; they merely acted in their private individual capacity.

2. that the British North Borneo Company was not invested by the British Government with the public power of acquisition and administration of North Borneo, unlike the different trading companies chartered at the time.

3. that the British Government assumed no rights of sovereignty whatever in North Borneo; and

4. that the British Government explicitly acknowledged the sovereignty and title of the Sultan of Sulu over North Borneo.

Significance:

The classic British text on International Law, a Treatise on International Law by Oppenheim (7th edition, edited by Lauterpacht, 1948), gives us the significance in International Law of the above facts. Oppenheim states that where an individual or a corporation acquires land in countries which are not under the territorial supremacy of a member of the Family of Nations, such acquisition of territory and sovereignty thereon "takes place outside the dominion of the Law of Nations, and the rules of this law, therefore, cannot be applied," unless the "corporation in question is invested by its State with public power of acquisition and administration." (Volume I, sec. 209 (2), p. 496). He adds:

"If the individual or corporation which has made the acquisition requires protection by the Law of Nations, he or it must either declare a new State to be in existence and ask for its recognition by the Powers, as in the case of the former Congo Free State, or must ask a member of the Family of Nations to acknowledge the acquisition as having been made on its behalf." (Id., at 496, 497.)

It is obvious that the British North Borneo Company, as the successor in interest of Overbeck and Dent, has not declared a new State to be in existence in North Borneo; and it is equally obvious that the British Government has refused to acknowledge, at least until 1946, the acquisition by Overbeck and Dent, and latterly, the British North Borneo Company, as having been made in its behalf.

What, then, is the significance in International Law, of the British Cession Order of July 15, 1946, which states in part:

"And whereas by an Agreement dated the twenty-sixth day of June, 1946, and made between His Majesty's Secretary of State for the Colonies on behalf of His Majesty (therein and hereinafter referred to as 'the Crown') of the one part and the Company of the other part the Company (amongst other things) have transferred and ceded all the said rights, powers, and interests to the Crown with effect from the fifteenth day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory should thereupon become part of His Majesty's dominions;

"Now, therefore, His Majesty is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:

"1. This Order may be cited as the North Borneo Cession Order in Council, 1946, and shall come into operation on the fifteenth of July, 1946;

"2. As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty's dominion and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo;

"3. All persons who on the fifteenth day of July, 1946, are citizens of the State of North Borneo by virtue of the provisions of the North Borneo Naturalization Ordinance, 1931, shall, on that day, become British subjects;

"4. His Majesty hereby reserves to Himself, His Heirs and Successors, power to revoke, alter and to amend this Order."

Note that the Cession Order is convenient in its vagueness as to the exact nature and scope of the rights and interests of the British North Borneo Company. How could it be otherwise in the light of the categorical disclaimers made by Lord Granville and Prime Minister William Gladstone?

Could the British North Borneo Company purport to transfer sovereignty over North Borneo to the Crown? Certainly not. The British Government had made it crystal clear that the Company did not have that power, and that sovereignty remained with the Sultan of Sulu. All that was transferred, in the very carefully worded Cession Order, was the mass of "interests, powers and rights" previously acquired by the British North Borneo Company.

In other words, the assertion of sovereignty over North Borneo by the Crown, effective July, 1946, under its own Cession Order, repudiated and set aside all the solemn Government declarations made by its highest officials; more than that, it threw overboard the sovereignty and title of the Sultan of Sulu which it had acknowledged in the past and completely disregarded the proprietary rights of the heirs of the Sultan over North Borneo. It was, to borrow the language of former Governor General Francis Burton Harrison, "an act of political aggression which should be promptly repudiated by the Government."

I shall not, at this juncture, belabor the point so ably expounded by the Philippines Free Press writer, Mr. Napoleon Rama, namely, that the agreement of 1878 was just a contract of lease, not a contract of cession. The statements of Lord Granville and Prime Minister Gladstone three years after the contract was concluded, the contemporaneous official communications to and from the Minister of State in Madrid, the yearly tribute of 5,000 dollars to the Sultan of Sulu, and the terms of the "Cession Order of 1946" amply show that no cession was contemplated or ever perfected. A lease arrangement which, according to language scholars, is the English translation of the Malayan word, "padjak," would seem to be the only other explanation. At any rate in International Law, individuals do not and cannot enter into treaties of cession (whereby sovereignty is acquired) with native tribal chiefs: these are outside the realm of the Law of Nations.

Modes:

It is probable that the British Government, to justify its new stand, will fall back on one of two modes of territorial acquisition in International Law; namely, occupation and prescription.

Occupation is an original mode of territorial acquisition, and is effected through possession and administration of the territory by or in behalf of the acquiring State. The prime object of settlement by occupation is the incorporation of unappropriated territory into the national domain of the acquiring State. Only such territory as is not within the dominion of any State may be the object of occupation. In other words, the territory must be res nullius or terra nullius. The term res nullius, as has been interpreted, does not require that the territory be uninhabited, but that it be not already occupied by a people or State whose political organization is such as to cause its prior rights of occupancy to be recognized.

We must concede that in the past European powers did not recognize the title of settled peoples whose civilization was allegedly below the European standard. The emergence of non-European powers, and the growing importance of new nations in the Afro-Asian bloc, have eroded away this concept. At any rate, insofar as the British Government is concerned, it is precluded from claiming that the Sultan of Sulu had a title or a political organization below the European standard. All we need to do is to refer back to the text, of Lord Granville's correspondence. Note the last paragraph in his letter to Morier, the British minister at Madrid, portions of which were quoted earlier:

"As regards the general features of the undertaking, it is to be observed that the territories granted to the Company have been for generations under the government of the Sultans of Sulu and Brunei, with whom Great Britain has had treaties of Peace and Commerce. . ."

It would be passing strange now for the British Government to contend that the Sultan of Sulu did not possess either a perfect title or a political organization below European standards, at least insofar as North Borneo is concerned. In the Law of Nations, states the British authority, Oppenheim, the conclusion of a bilateral treaty, such as a treaty of commerce and navigation, implies recognition (Op. cit., Section 75 (cl) p. 143).

THE NORTH BORNEO QUESTION

But this is not all. The important thing is that the Cession Order of 1946, annexing as it does the Territory of North Borneo and incorporating it as part of His Majesty's dominions, ran counter to and violated:

(1 ) the official declarations of the British Government as to the legal nature and effect of the Agreement of 1878;

(2) the Treaty of Peace and Commerce entered into between Great Britain and the Sultan of Sulu;

(3) the title and rights of dominion which the Sultan of Sulu, on the strength of British admissions, had over North Borneo.

Oppenheim is authority for the proposition that while it is true that States may acquire new territorial or other rights by unilateral acts, such an annexation, without recognition on the part of third States being required for their validity, yet the position is different when "the act alleged to be creative of a new right is in violation of ... conventional International Law. In such cases the act in question is tainted with invalidity and incapable of producing legal rights beneficial to the wrongdoer in the form of a new title or otherwise." (Op. cit., Sec. 75 (b), at p. 136).

Prescription. — Prescription has been defined as the acquisition of territory by an adverse holding continued through a long term of years. The generally accepted concept of prescription in International Law apparently requires the existence of two essential facts, namely: continuous and undisturbed possession, and lapse of a period of time. Hugo Grotius, the father of International Law, laid down the rule that the adverse holding should go "beyond the memory of man. Vattel maintained that possession may ripen into title only after the lapse of a "considerable number of years " Insofar as the present question is concerned, there may not be sufficient warrant for saying that the British possession was adverse, considering the yearly tributes they have paid to the Sultan of Sulu and his heirs. Their possession from 1946 up to this date, in the light of the continuous protests of the heirs and the termination of the lease, has not been uninterrupted and cannot possibly ripen into a title.

I have heard it said that the Philippine claim may not prosper because of Article 1 of the Philippine Constitution defining the National Territory. Article I provides:

"Section 1. The Philippines comprise all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said Treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction."

I feel that those who argue along this line confuse the concept of national domain with proprietary rights of Filipino citizens over a portion of the earth's surface. The Philippine Government is now called upon to defend and vindicate those rights, and if, as I know, appropriate arrangements have been made by the heirs of the Sultan of Sulu, with the Philippine Government, there should be no apprehension whatever that this claim will provide undue incentives for mere speculators. In other words, Article I has no applicability whatever to this kind of a claim. In the remote possibility that Article I is made to apply, there is ample room for protection in the saving clause found in said article, in the light of authoritative pronouncements of British officials. We need not even consider the thesis that in 1935, when the Philippine Constitution was adopted by the Filipino people, the Philippines was not an independent State but a mere dependency, and that therefore the restrictive provisions of Article I could not possibly tie the hands of the Republic as soon as independence became a reality.

There is something pathetic in the fact that it took an American official, the former Governor General Francis Burton Harrison, to assess the full import of the Cession Order of 1946. In a special report he submitted on September 26, 1946 in his capacity as Special Adviser on Foreign Affairs to the Philippine Government, he called the Cession Order by its proper name — "an act of political aggression."

It would seem equally pathetic that some home-grown nationalists have counseled the Government to pursue a policy of fear and inaction.

In 1946, the voice of Harrison sounded like a cry in the wilderness. In 1962, that voice has gained volume and is no longer alone. Just a few days ago, the House of Representatives unanimously passed a resolution requesting the President to take all the necessary steps consistent with international law and procedure for the recovery of North Borneo.

Before the bar of world opinion, the Philippines can invoke the ringing declarations of responsible leaders all over the world — including those of the United Kingdom — who have vowed to end the practice of colonialism in all its manifestations. In recent years, the United Nations has been seriously concerned with the problem of colonialism and has now asked for its speedy liquidation. The North Borneo question should furnish an excellent instance for the British Government to translate a preachment into a cold reality. When in 1946, the British Government saw fit to make North Borneo a colony, in disregard of its previous disclaimers, her policy-makers must have foreseen the inevitable consequences of such an inopportune move, considering the temper of subject peoples all over the world. For the Filipinos, the North Borneo situation is not merely a problem of liquidation of colonialism; it is a question of the return to them of what, in law and equity, properly belongs to them, and which they can rightly call their own.

As I said in the beginning, there should be no apprehension of any rupture in the friendly relations between the United Kingdom and the Philippines. Friends can and should at times disagree. The important thing is that they should not become disagreeable. And like two good friends, the Philippines and the United Kingdom can differ on this point without being difficult. It is merely in keeping with the highest traditions of civility and a mutual respect for the rule of law that the Philippine Government should now, in the light of all relevant evidence, institute the claim and initiate the necessary steps toward the peaceful settlement of the North Borneo question. Manila Times, Manila Chronicle, Philippines Free Press - May, 1962.