The History of Sulu

by Najeeb M. Saleeby

From the transcript it is evident that Spain may regulate the exercise of the right of traffic and commerce, not with the purpose of restricting, and much less of denying, the principle of commercial liberty recognized in Declaration I, but with that of conditioning the exercise of that right in such a way that her own rights as a sovereign nation shall not be infringed. And what she may do in regard to mercantile trade, with greater reason she may and should do in everything referring to the right of fishery, a right which is declared only in general terms, and one of which the protocol does not treat except in making the affirmation of the principle itself, whereas in regard to commerce, it descends to minute details.

And this could not be otherwise, for anything else would be equivalent to impairing the sovereignty of Spain; and this, in an agreement in which this sovereignty is openly recognized and proclaimed, would pre-suppose a contradiction so palpable and absurd that it is not worth while even to discuss it.

Spain, as a sovereign and independent state, holds and exercises her sovereignty not only in her territories and on the coasts of the same, but in her jurisdictional waters, and can, therefore, regulate the exercise therein of any right granted to foreign subjects, and may, even, in the exercise of her sovereignty, prohibit the enjoyment of such right altogether; this is an indisputable principle of international law, though there is nothing to prevent a state from limiting the same in favor of another or other states; but it is a sine qua non condition to this that there shall be an express and clear declaration of her will on this point, and no one can reasonably affirm that Spain has made in the Sulu Protocols, neither in that of 1877, nor in that of 1885, a total or partial surrender of this right in regard to that of fishery; there is, it is true, a declaration in general terms that the fisheries are absolutely free in the archipelago of Sulu; but this absoluteness of the principle is immediately qualified by the condition that it shall be without prejudice to the rights recognized as belonging to Spain in the protocol, and it has already been pointed out that one of these rights—the principal one and that which contains all the others, the right of sovereignty—is proclaimed and recognized at the head of the agreement. Outside this declaration in general terms, there will not be found in all the protocol a provision or regulation referring to the exercise of the right of fishery and much less a concrete and express declaration on the part of Spain that she will permit the exercise thereof freely on her coasts and in her territorial waters. To permit of this a concrete, clear, and definite declaration would be necessary, such as is to be found in the Morocco Treaty, signed on November 30, 1861, Article 57 of which establishes qualifiedly “That Spanish subjects shall have a right to fish along the coasts of the Moroccan Empire;” and even so, in Article 60 of the same treaty, it is stipulated that, in order to facilitate the coral fishery, in which the Spaniards engage on the coast of Morocco, fishers shall pay the sum of 150 Spanish dollars for each coral fishing boat, and that through the representative of Spain they shall request permission from the minister of foreign affairs of His Majesty the Sultan who shall issue the necessary authorization.

From which it may be seen that even in the case of declarations in regard to the right of fishery which are concrete, clear and definite, there is needed, for the free exercise of the same, something more than a declaration in general terms, such as is that contained in the Sulu Protocol of 1877.

Furthermore, it is always customary in international agreements which refer to fishery rights to lay down regulations and provisions which shall regulate the exercise of such rights, as is proved by a multitude of agreements, among which are: that already cited of Morocco, that of February 18th, 1886, between Spain and France regarding the fishery and navigation of the Bidasoa, in which the right of oyster fishing is restricted, its absolute prohibition being made possible; as also that of 1889 ratifying the preceding one, the Portuguese convention of March 27th of 1893 and the coast police and fishery regulations; as well as that of August 22nd of 1894, in regard to the fisheries in the waters of the Algarbes, etc.; all of which is well known by the illustrious Government of His Majesty, and attention is called to it here only in support of the opinion maintained, namely, that the right to authorize, condition, restrict, and even prohibit the engagement in fishery on its coast and in its jurisdictional waters is inherent in the sovereignty of an independent state; and if it has this right in regard to fisheries in general, with greater reason must it preserve and exercise the same in regard to oyster fisheries, by reason of the changes which may be produced in the sea bed, and even for the purpose of preserving the breeding grounds of the precious pearl-shell mollusk, the Avicula Margaritifera, the banks being the property of the nation, and like all its territory, inalienable and non-prescriptible; both so that they shall not be exhausted and that their exploitation may be reserved for the national industry.

From the preceding, written with less detail than would have been the case had the pressure of time permitted, it may easily be inferred that, in the opinion of this General Government, Spain in spite of Declaration I of the Sulu Protocol—perhaps it would be more correct to say, by virtue of that very declaration, the terms of which really determine the meaning of Declaration III and Article I of the Treaty—preserves intact her right as a sovereign nation to restrict, condition, and even prohibit engagement in the oyster fishery on her coasts and in her jurisdictional waters, without further limitations than those which she may deem expedient to self-impose.

Admitting her rights as a sovereign state, there arises a question of a political nature, which the circumstances above indicated convert into a problem demanding an early resolution.

To what extent should Spain exercise this right?

On this point, the views of the General Government will be expressed as concisely as possible and with the soberness demanded both by the respect due to the high prerogatives of the public authorities and by an ignorance of many of the elements which enter into the question, without a knowledge of which it is difficult to determine to what extent it is expedient to restrict the exercise of the right to engage in the oyster fisheries which foreign subjects claim to exercise freely in the Sulu archipelago, a pretension which this General Government regards as entirely opposed to the rights of Spain and her moral and material interests in the Far East. Our prestige with the Malay races here, our moral influence over these semi-civilized Mohammedan people, who recognize no right or supremacy but that of might, demand that Spain, as a colonizing nation, shall maintain the integrity of her sovereignty and shall not seem to be subjugated to the will of other Powers, as would appear if, in her territories and on her coasts, with the knowledge and permission of her authorities and of her war ships, and without even heeding them, foreigners should perform acts which, like that of engaging in the mother-of-pearl fishery, being contrary to our material interests, cannot be carried out without paying tribute to the Moro sultans and chieftains themselves.

There is no doubt that the need for preserving cordial relations with Germany and England and for maintaining the most perfect understanding between the European powers in anticipation of some concerted action in regard to the Empires of China and of Japan, which will render necessary in the future the expansive policy of the latter towards the south, as well as the hegemony claimed by the latter in the Orient, counsel a circumspect international policy and a moderate exercise of our sovereign rights in the archipelago of Sulu; and for this reason, perhaps it would be inexpedient to forbid the right of fishery to foreign subjects, as such action would certainly give rise to diplomatic questions and remonstrances, which should be avoided at any cost; but this General Government deems it indispensable to condition and regulate the exercise of this fishery right, especially in so far as it relates to the pearl-producing oyster, the exploitation of which should be governed by considerations of our prestige and of the advantage and benefit of our material interests. Supported therefore by our right of sovereignty, by international practice, and by the terms of Declarations I and III of the Protocol of 1877 and of Articles I and IV of that of 1885, there should be issued certain coast police and fishery regulations for the Sulu archipelago, laying down clearly the relations which are to exist between the Spanish Government and foreign subjects engaging in the fishery industries along our coasts and in our jurisdictional waters; which industries should not be engaged in, especially in the case of the oyster, without the necessary authorization of the Spanish authorities, and after the payment of the corresponding industrial patent or license, or of the dues which it may be deemed expedient to exact.