It is, by now, an article of faith that when most European colonialists departed from Africa or Asia, they left behind hastily drawn borders that have led to secessionist or irredentist claims and, in extreme cases, enduring tension. For the most part Africa has been “spared” a raft of such claims thanks to the original charter of the Organisation for African Unity – now the African Union – which insisted on countries retaining and respecting existing borders and sovereignty.
Yet not all land claims or disputes are equal. In many cases there may be valid reasons for land claims. There are also instances where claims may be spurious or based on ancient myths, legends or imagined communities. In other instances, there may be tribal, clan or “family” claims, often fed by predatory legal firms or vested interests.
One such case I have looked at is the Philippine claim to Sabah, one of Malaysia’s 13 states which is located on the far eastern corner of the island of Borneo. The Philippine claim to Sabah is as much a legacy of colonialism as it is rooted in spurious, or misread, historical evidence on the part of the Philippine claimants who are, actually, a single family and who claim to be descendants of a sultan born in present-day Malaysia five centuries ago.
The ethno-nationalist politics of the Philippine claim
The Philippine claim is essentially ethno-nationalist, and has for many years been used by populist politicians to whip up the emotions of voters. The claim is also somewhat “personal” though it’s difficult to imagine it as not being purely for pecuniary gain.
Nevertheless, the claim is rooted in a belief that Sabah “belongs” to the Philippine archipelago, which spans the Sulu Sea – a vast body of water that includes the southernmost islands of the Philippines and the eastern shores of Borneo. For the sake of brevity we can include the Sulu Sea within a “greater South China Sea”.
While successive Philippine political leaders have used the claim as an ethno-nationalist lever for their own political careers, its significance petered out over the years, to the extent that the former president of the Philippines, Rodrigo Duterte, said that disputes over the region were a waste of time.
On 12 November 2017, Duterte stressed that territorial disputes in the greater South China Sea were “better left untouched”. By 2022, the issue became somewhat irrelevant in Philippine electoral politics; Bongbong Marcos, son of Ferdinand Marcos – who held the presidency from December 1965 to February 1986 – was elected as president in May 2022. That the Sabah claim had become politically irrelevant prompted something of a sigh of relief.
Writing in the Manila Times of the Philippines, Ei Sun Oh explained: “I was most elated to see that unlike in many previous rounds, during the latest Philippine presidential election the Sabah issue was not as conspicuously touted as a nationalist cause by the various candidates in their effort to secure more votes. I hope this positive trend which bodes well for bilateral relations will continue into the future.”
There remain, nevertheless, politicians who – not unlike Donald Trump – would recklessly tweet about Philippine claims to Sabah. In 2020, the former Philippine secretary for foreign affairs, Teodoro Locsin, snapped at the US embassy in Manila for referring to Sabah as part of Malaysia. In a strident and mildly threatening retort, Locsin tweeted: “Sabah is not in Malaysia if you [presumably referring to the US] want to have anything to do with the Philippines.”
Locsin’s snap at the US embassy prompted Hishammuddin Hussein (Malaysia’s foreign minister at the time) to respond: “This is an irresponsible statement that affects bilateral ties… Sabah is, and will always be, part of Malaysia.”
Economic ties between the countries have been strained because of this historical claim, mainly by a single family (more below) for the better part of the past decade, as the Financial Times reported in 2013.
The historical record
You don’t need to have skin in the game to understand that Sabah is part of Malaysia, spread as it is across a peninsula and Borneo, and that this is historically accurate, though immensely complicated which, for reasons of space, cannot be fully unravelled. This is a fairly easy part of the story, but it would be best if it were not traduced. The Philippine claim is that Sabah is its territory because it fell within the boundaries of the ancient Sultanate of Sulu – and that the territory (Sabah) belonged to the Philippines.
This claim seems to be at odds with the fact that the Sultanate was established in 1405 by Sharif ul-Hashim (real name recorded as Sayyid Abu Bakr bin Abirin Al Hashmi) an actual native of present-day Malaysia. The Sultanate included Sabah as well as many of the more than 7,000 islands of what we know today as the greater South China Sea.
More recently, historical records show that Sabah was leased from Brunei and then from the Sultan of Sulu by Baron Gustav von Overbeck (born in Germany in 1830 and died in London 1894) in around 1878.
The Philippines was still a Spanish colony at the time, and had no claim to Sabah. Von Overbeck later sold his rights to Alfred Dent who founded the North Borneo Company which administered Sabah between 1882 and 1946, when Britain took control of Sabah. When the British left Malaya (as it was called then), Sabah naturally became part of the Southeast Asian country.
This transition to Britain and then Malaysia is confirmed by records which showed that the Sulu Sultanate had indeed existed in the Sulu Archipelago for several centuries before it was dismantled in 1915, when Sultan Jamal ul-Kiram stepped down. Harold C Conklin of Yale University translated reports which confirmed that in 1878 Jamal ul-Alam, then Sultan of Sulu, granted a “Permanent Lease Covering His Lands and Territories on the Island of Borneo”.
This historical ownership issue becomes only more complicated, and further weakens the Philippine case the deeper you delve into history. The claims are driven by the Kiram family, who took their case to European courts.
The case of the sultan’s kin
That the basis for the Philippine claim is weak has not stopped eight people who claimed to be descendants of the last formally recognised Sultan of Sulu, Jamalul Kiram II, who came to the throne at the age of 10 in 1894. The Kiram family continue to put forward claims to the resource-rich state of Sabah. But they seem to not actually want the territory, but access to pecuniary gains from Sabah’s resources.
In their latest move (in June 2022) the Kiram family lawyers in London served an asset seizure notice on two Luxembourg-based subsidiaries of Malaysia’s national petroleum company Petronas (Petronas generates 11% of Malaysian government revenues) to enforce a $15-billion (R247-billion) arbitral award linked to a “colonial-era” land deal.
This is noteworthy. The Kiram family are backed by a London law firm and bankrolled by a British investment fund, Therium, in a litigation process that has, until this month, cost in excess of $10-million. The proceedings have been described by legal experts as one of the most unusual international arbitration disputes in history.
While a French arbitration court ordered Malaysia to pay the sum to the descendants to settle the disputed colonial-era land deal, the Paris Court of Appeal had “stayed” the ruling, after finding that enforcement of the award could infringe the country’s sovereignty. The Kiram family have persisted and are attempting to seize Malaysian government assets around the world to enforce the $14.9-billion arbitration award they won against Malaysia – despite a temporary stop on the case by a French court, according to Reuters.
Read more in Daily Maverick: “Global land ownership and dispossession offer lessons for South Africa”
These financial claims by the Kiram family have raised eyebrows because they did not include “ownership” of the poorest state in Malaysia, according to Rais Hussin of EMIR research, an independent think tank:
“What is most unique is the nature of the Kiram ‘family’ (first) legal salvo. Rather than reclaiming Sabah, it took aim at the most valuable asset of Malaysia: Petronas. If the legal claim is built on ownership of the Kiram family on and of Sabah, shouldn’t the case revolve entirely and wholly on the state? Yet, it wasn’t. The Kiram family does not want the onerous responsibility of taking back one of the poorest states of the Federation of Malaysia.”
As it goes, the Philippine government has previously insisted that the Kiram family drop their claims. In February 2013, then Philippine president Benigno Aquino threatened a clan leader with prosecution if he failed to end the armed occupation of a fishing village in neighbouring Malaysia.
“If you choose not to cooperate, the full force of the laws of the state will be used to achieve justice for all who have been put in harm’s way,” Aquino said in a televised speech aimed specifically at the family and its supporters.
Aquino warned Jamalul Kiram, the notional head of the family, that he could be pursued for violating Philippine laws against provoking war or exposing Filipinos to reprisals, unless he ordered his followers in Sabah to withdraw. It should be noted that because of the Malay antecedents of the Kiram family, Malaysia has paid the family a stipend of about 5,000 ringgits (R18,600) a year.
What, then, can we make from this very basic outlay of what the Financial Times described as one of the most unusual international arbitration disputes in history?
Well, the first is that the political claim is spurious because the first Sultan of Sulu was from Johor, in present-day Malaysia. Second, Sabah was ceded to present-day Malaysia’s territory on the island of Borneo, and it became part of independent Malaysia’s 13 states when the British colonists departed (along with Sarawak, also on Borneo).
Third, the Philippine government has warned the Kiram family to cease their efforts to Sabah, but the family continued to pursue their claims, sometimes “with deadly results”. Fourth, the Kiram family are evidently “bankrolled” by a British investment fund, Therium, and seek mainly financial gain, instead of “one of the poorest states of the Federation of Malaysia”.
Finally, the Kiram family’s continued claims threaten regional stability, as former Philippine president Aquino has warned. DM
Ismail Lagardien is currently visiting Southeast Asia and is studying the geo-economic and strategic issues of the region.