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(Sabah)
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Sabah became a British crown colony based on the transfer of the Deed of Cession of 1878 between the Sultan of Sulu and Baron Gustavus de Overbeck and Alfred Dent.


In 2019, the heirs of the Sultanate filed an ad hoc arbitration proceeding in Spain against the Government of Malaysia and obtained an order from the Superior Court of Justice in Madrid to appoint a sole arbitrator to decide the dispute.


Citing sovereign immunity, the High Court in Malaysia dismissed the Spanish court ruling, saying Kuala Lumpur is the proper venue to resolve the dispute.

Interesting then was the decision of the heirs to pursue its historic case with Spain, which colonized the Philippines for more than 300 years.


Much more engaging was the decision of High Court Judge Datuk Martin Idang, who expectedly decided in favor of the Government of Malaysia in its suit against eight of the supposed descendants of the Sultan of Sulu at the Kota Kinabalu High Court on March 17 to counter the Spanish court ruling, but in the process admitted that the Sultanate had a historic right over the territory.


A travel through history was needed to divine the reason for putting the issue before the Spanish court.


Spain at one time exercised direct sovereignty over the Sulu Sultanate and all of its dependencies, which was supported by a series of treaties entered into between Spain and the Sultan of Sulu in 1737, 1836 and 1851.


All three treaties purported to establish Spanish control over Sulu and, in some instances, appeared to have ousted the Sultan's sovereignty.


It has been suggested that these treaties establish as a matter of law the capitulation of the Sultan of Sulu to Spanish rule.


That was where the Malaysian magistrate appeared to have fallen into a trap carefully laid out by the Sultanate for the acceptance of its title over Sabah in Malaysia's effort to rebut the Spanish court.



In the High Court's decision, it found the simple conclusion on Spanish sovereignty as problematic. As a matter of international law, two things must happen before sovereignty over a territory can change hands.


The original sovereign (in this case the Sultan) must transfer sovereignty through a number of ways, such as by treaty, abandonment or conquest.


The new sovereign must not only accept but also occupy or take effective control and possession of the territory.


Idang's ruling stated that although Spain signed three treaties with the Sultan, the former never occupied or established administrative authority over the Sultan's former territories, including Sabah. The ruling indicated:

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"Therefore, it can be argued that Spain, for sheer lack of effort and effective control, allowed Sulu to reestablish its sovereignty over its former territories through the doctrine of continued occupation."


"This is significant because such delinquency effectively allowed the Sultan revest sovereignty over Sulu and consequently, conferred him with sufficient international legal standing with which to enter into future agreements concerning Sabah." 

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Arbitration was resorted to by the Sultanate based on the provision of the 1878 deed, saying "in case of any dispute (that) shall arise between His Highness the Sultan, his heirs or successors and the said Gustavus Baron de Overbeck or his Company, it is hereby agreed that the matter shall be submitted to Her Britannic Majesty's Consul-General for Borneo."


In his decision, Idang held that there is no binding agreement between the Government and the Sultan's heirs that compels either party to submit to arbitration in the event of a dispute. Such disputes are to be resolved in the Malaysian courts.


But he stated from both a historical and legal perspective, Spain was not sovereign over the Sulu Sultanate in 1878, the date on which Overbeck and Dent took possession of and assumed control over the parts of Sabah controlled by the Sultan (via the Deed of Cession).


It was also observed that Sulu did not effectively control or occupy Sabah's interior.


From the perspective of Overbeck and Dent, Spain was not in a position to exercise sovereignty over Sulu. Moreover, Spain did not seek to assert control over Sabah, choosing instead to focus its attention on Sulu itself and its nearby islands.


Further, Spain, by its conduct and a signed 1885 Madrid Protocol, effectively disclaimed any sovereign interests over Sabah. Therefore, Idang stated the only link between the Philippines and Sabah is the Sulu Sultanate.

Malaysia's high court admitted through a recent ruling Sulu's sovereignty over Sabah