Not a day goes by without news of rising tensions in the South China Sea, as regional powers such as Vietnam, the Philippines and Malaysia increasingly counter China’s efforts to dominate the strategic waterway through which global One-fifth of the business goes on. , Yet beneath these rising tensions, lurked the specter of European colonialism.
The unexpected connection between present-day tensions and past misdeeds comes through a seemingly obscure international legal dispute that resulted last February in a nearly $15 million lawsuit against the Malaysian government on behalf of nine heirs to a colonial-era sultanate in the Sulu region. Billion was awarded. of the Philippines.
Not only is the award the second largest of its kind in the history of international legal arbitration, but it may also be unsurprisingly linked to current geopolitical tensions in the region. According to former NATO analyst Maurizio Geri, the Sulu heirs advocate Closely aligned with US tech giants To compete with China to dominate the submarine cabling routes through which the world’s internet data is passed.
Gerry claimed that, in addition to traditional trade routes, control of the global Internet is the real prize in the South China Sea. Indeed, in early May, US and EU officials wrote immediately Malaysia cited risks to national security and foreign investment due to a Malaysian government review that could give China’s Huawei a major role in building Malaysia’s 5G network.
Sulu heirs’ legal case is being funded by undisclosed western investors Third-party litigation funding firm Therium CapitalAs Gerry argued, the case may well increase Malaysian perceptions of Western hostility to Malaysia’s national interests.
Faulty History and Colonial Games
The case is based on a flawed reading of the history of Spanish and British colonialism in the region. Sulu heirs continue their case An 1878 Colonial Era Land Deal Wherein the Sultan leased his territory in the Sabah region of present-day Malaysia to two British colonists, Alfred Dent and Baron de Overbeeck, for the sum of about 5,000 Malayan dollars a year. malaysia paid a fee up to armed invasion of Sabah by followers of the Sulu heiress in 2013, resulting in 71 deaths.
The arbitrator’s decision in the Sulu Heirs case is based on the assumption that the 1878 treaty is the de facto legal basis for modern Malaysia’s sovereignty over the northern Borneo region, today known as Sabah.
but it’s not like that. The lawyers treated the treaty of 1878, which is the whole basis of the case, as a commercial private lease agreement, But in fact, historical records prove that it was an artifact of British colonial strategy. The Sulu Sultanate did not exercise sovereign control over northern Borneo in the first place, and therefore did not actually have the legal authority to assign or lease land.
according to the late historian leigh r wrightAn expert in the history of Borneo and other regions around the South China Sea at the University of Hong Kong, last year Dent and Overbeck had already signed a treaty with the Sultan of Brunei, ceding sovereignty over northern Borneo to him ” sale” was included. land, rights and people of the region” in exchange for Brunei paying 15,000 Malayan dollars per year. At the time both the Americans and the British believed that North Borneo was controlled by the Sultan of Brunei.
As Wright observed, Baron von Overbeck went to Sulu for a grant of territory after being told by the acting British Consul General in Brunei that it was only “as an afterthought” that the Sulu Sultanate claimed the northeast coast. . Diplomatic correspondence between the US government, the British Foreign Office, and the Sultan of Brunei confirmed that in the 1880s the United States believed that it was the Sultan of Brunei, not the Sultan of Sulu, who legitimately ruled British India. Sovereignty was handed over to the North Borneo Company. ,
The British colonialists were well aware that neither Sulu nor Brunei exercised full sovereignty over the region – “the anarchic situation on the coasts and the weakness of Brunei and Sulu prevented either state from maintaining control over the region”. ,” as Wright wrote.
Other historians agree with this judgement. in his University of Michigan Studies, Edwin Barber concluded that in 1878, the Sultan of Sulu was “in an untenable legal position and even an untenable political position.” The area he claimed was “a wild and sparsely populated stretch of coastline, which accepted his spiritual suzerainty, but no more. Even his claim—the rather uninvited territory—was rejected by Brunei. was challenged, and his lack of control over it meant he could not get more revenue than this, so Overbeck’s offer of annual payments in exchange for British-guaranteed presence must have seemed a golden opportunity.
Session or Lease? a modern dichotomy
The case of the Sulu heirs also builds on the idea that the 1878 agreement was a “lease”, not an “acquisition” of sovereignty – dependent on a particular translation of the old Malay word, postjak, The problem is that these are modern words. As Barber observed, the differences between the uses of the word at the time “were probably not so precise as those of today.” He argued that the treaty itself indicated a transfer of sovereignty as it specified that Overbeck and Dent would cede the land “forever and until the end of time”.
He also cited RH Leary, writing in a 1963 edition of the Far Eastern Economic Review, who pointed out that the annual payment was not rent, but “theoretically – a pension to compensate for the loss of income-producing land. Nothing in this Not strange; it was standard practice, and certainly a good deal for a sultan to sign away a portion of barren forest to get a regular and secure income.
Both the treaties of 1877 and 1878, then, do not describe a legitimate transfer of sovereignty, but rather a British colonial strategy to negotiate with competing local rulers, none of whom actually controlled North Borneo. The idea was simply to neutralize any indigenous opposition to the British North Borneo Company, which was solely exploiting the land and its resources for their own benefit.
So when the British signed treaties with the Sultan of Sulu, they did so purely as an afterthought to ensure that they suitably appeased the natives.
Colonial narratives influencing the legal and geopolitical landscape
This means that the entire basis for the claim of Sulu heirs is little more than a colonial-era figment. The sovereignty of Malaysia as a nation does not derive from From dead colonial-era pacts with the British – rather than anti-colonial struggle against British rule, culminating in earlier annexation separate political entities,
This certainly calls into question the entire legal case. Why do you do a spanish intermediary A French court believes they have the authority to decide complex and hotly disputed matters of colonial history in an area that has little to do with them today – and about an issue that has become the subject of historical debate Has happened?
It sets a dangerous precedent for international law; If entire modern legal cases can be constructed by superimposing modern-day fictions and concepts on historical colonial transactions, it opens the door to all kinds of abuse. Sulu heirs can use their awards to seize Malaysian government properties in the 167 states that are signatories to the New York Convention. They have already seized the properties of Malaysia’s state-owned energy firm Petronas in Luxembourg. Attempted to seize Malaysian diplomatic buildings in Paris.
If Malaysia’s sovereignty can be undermined on the basis of colonial treaties that preceded it, what is stopping similar ideas from undermining modern-day sovereign states in former colonial territories? What’s stopping the Philippines from claiming the rest of the old Sulu grant in Indonesian Kalimantan? Or by seeking control over Sabah and Sarawak to Brunei? Or are various African countries demanding that the borders be rolled back to reclaim ancient tribal lands? Where does it stop?
Under the Philippines’ historic territorial claims on Sabah even with an 1878 treaty, the new $15 billion award against Malaysia could reinstate these claims, creating new tensions between the two countries at a time of growing instability in the South China Sea. Can do. Although the Philippines at first distanced itself from the Sulu affair and its implications for the Philippines’ historical claim on Sabah, Later official statements left it completely open. whether the latter can be revived.
This can have seismic consequences. The Sulu affair could drive a wedge between Malaysia and the Philippines at exactly the time the United States needs potential allies in the region to provide a unifying force against Chinese encroachment.