After the sacking of the Sultanate of Malacca in 1511, the heirs to the throne of Malacca, Sultan Muzaffar Shah and Sultan Alauddin Riayat Shah II established the Perak and the Johor Sultanates respectively, claiming territories once ruled by Malacca.

While Perak remained as a backwater kingdom, Johor fluorished into a formidable Malay power commanding over the Strait of Malacca with the Port of Riau replacing Malacca as the centre of spice trade in the Malay Archipelago in the seventeenth century. Johor was so influential that the Dutch forged an alliance with the Johor forces to oust the Portuguese from Malacca in 1641.

Not too long after that, in 1685, the British came to this part of the world and established their colony in Bencoolen, modern-day Indonesian province of Bengkulu.

If the Malays of the northern Malayan States had to endure the everlasting effects of the Anglo-Siamese Treaty 1909, the Malays of the south were subjected to the Anglo-Dutch Treaty 1824 between the Dutch and the British – the treaty that broke up the Malay World up till today.

Competing Claims in the Malay World

Subsequent to the coming of the Portuguese in Malacca in 1511, the Dutch and the British too, attempted to expand their cloak of influence into the Malay World. In 1619, the Dutch established Batavia on the island of Java and were successful in expanding their influence into Malacca in 1641.

In 1685, the British arrived in Southeast Asia and built Fort Marlborough in their newly-founded colony of Bengkulu (Bencoolen) in Sumatra.

In early 1600s, Aceh rose as a major native power in the region and colonised most parts of northern Sumatra and the Malay Peninsula, subjugated Johor and Kedah under its power. The gradual fall of Aceh after the death of Sultan Iskandar Thani in 1641 strengthen Johor’s position as the foremost Malay power taking control over the Strait of Malacca.

By 1680, Riau became the foremost post of the region as affirmed by the Dutch governor of Malacca at that time, Thomas Slicher who described that Riau was a thriving port with bustling shipping activities. Meanwhile, the Dutch was not keen to develop Malacca as they put more importance on Batavia, their capital in the East. Francis Light settled on Penang in 1786 but like Bencoolen, it remained largely a colonial backwater. Later in 1812, the British took Bangka-Belitung Islands after they were ceded to them by the Palembang Sultanate.

The more serious competing claims began between the British and the Dutch in the Malay World when Stamford Raffles, the then Governor General of Bencoolen decided that the British needed other strategic settlement particularly on the Malay Peninsula to counter Dutch hegemony in this region.

Initially, Bintan was identified as a possible candidate but finally Raffles had his eyes on Singapore, then a territory of the Johor-Riau Sultanate. On 6 February 1819, Tengku Hussein ceded the island of Singapore to Raffles in return of British recognition to his position as the rightful Sultan of the Johor empire.

Despite the gradual encroachment of European powers into the Malay Peninsula, the Riau Islands and Sumatra, local Malay kingdoms were largely left untouched until the Anglo-Dutch Treaty 1824 was concluded. This treaty was entered into by these colonial powers without taking into consideration its effect on the socio-political scenario of the Malay World.

The Anglo-Dutch Treaty 1824

The taking of Singapore by the British irritated the Dutch that already had a strong foothold in Malacca. The British felt that it was not entirely viable for them to keep Bencoolen given its location – too far out from other British settlements of Penang and Singapore. As a compromise, the British and the Dutch agreed to swap territories and Bencoolen was thereafter, exchanged with Malacca in 1824.

The treaty expressly placed the Malay Peninsula and Singapore under British influence while Sumatra and islands south of the Singapore Strait under Dutch control. In addition, the treaty reaffirmed Dutch control over Java and Bangka-Belitung Islands.

Historically, the Malay Peninsula, Sumatra and the Riau Islands have always been politically part of the same territory. Although the Malay Peninsula is separated from Sumatra and the Riau Islands by the Strait of Malacca and Strait of Singapore respectively, majority inhabitants were people of the Malay race - sharing the same history, culture, language and religion.

Just like the Anglo-Siamese Treaty 1909 that separated northern Malay territories via the tiny Sungai Golok, the Anglo-Dutch Treaty 1824 effectively altered the socio-political structure of the Johor-Riau Sultanate using the constricted Strait of Malacca and Strait of Singapore.

As a result, the Johor-Riau Empire was dissected into two parts in 1824 – the Johor Sultanate led by Sultan Hussein and the Riau Sultanate under Sultan Abdul Rahman.

Was the Anglo-Dutch Treaty 1824 Valid?

The Anglo-Dutch Treaty 1824 alienated Malay territories to the likings of these colonial powers even though they have yet to entirely annexed the Malay Peninsula, the Riau Islands and Sumatra as part of their empires when this treaty was concluded.

In exception of Penang, Malacca, Singapore and Bencoolen, most parts of the Malay Peninsula and Sumatra were still largely independent and dominated by local sovereign Malay kingdoms such as Acheh, Johor, Minangkabau, Riau and Deli, among others.

The sovereignty of the Sultanate of Johor was reaffirmed by the International Court of Justice (ICJ) in Pedra Branca Dispute in 2008. The Sultanate of Johor is now part of modern Malaysia.

Nemo dat quod non habet, literally means ‘no one gives what he does not have’ is a legal rule that states that the purchase of a possession from someone who has no ownership right to it denies the purchaser any ownership title. One can only give away what he owns.

For example, when the French sold Louisiana to the United States of America (USA) in 1803, France was the actual sovereign of the said territory. Similarly, Russia was in a position to sell Alaska to the American government in 1867 as it was the former sovereign over the said land. Both Louisiana and Alaska today are now states within the USA.

This however, was not entirely true as far as the Anglo-Dutch Treaty 1824 is concerned. In 1824, the British has yet to become the true master of the Malay Peninsula.

The British only began to involve heavily in affairs of the Malay states in 1874 when the Pangkor Treaty was concluded. Meanwhile the Dutch was still gradually attempting to subjugate local kingdoms in the rest of the Nusantara.

Based on the legal maxim nemo dat quod non habet, the British and the Dutch were not in the position to do so unless the treaty was entered into with the consent of the local rulers. From this viewpoint, it is not too simplistic to state that the Anglo-Dutch Treaty 1824 was invalid.

Nevertheless, one may also argue that the treaty did not actually spell out the sovereignty of the Dutch and the British over Sumatra, the Riau Islands and Malay Peninsula respectively.

As the treaty merely defined the sphere of influence, not sovereignty/ownership of the Dutch and British in this region, the legal maxim nemo dat quod non habet is irrelevant and may not render the treaty invalid.

The Anglo-Dutch Treaty 1824 marked a huge episode in the history of the Nusantara - separating it into two major countries – Malaysia as the successor State of British Malaya (with British Borneo) and Indonesia as the successor State of the Dutch East Indies. Based on the current political scenario, it is impossible for Sumatra, Riau Islands and the Malay Peninsula to be politically together again.

The weaknesses of rulers of the past made it possible for distant powers with imperialistic ambitions to gradually colonise the Malay World. The past remains unchanged. Malaysians and Indonesians in particular should take this as a lesson so as not to allow history to repeat itself in building a stronger Nusantara.

* Mohd Hazmi bin Mohd Rusli (Ph. D) is a senior lecturer at Universiti Sains Islam Malaysia and a research associate at the Asia-African Legal Consultative Organization (AALCO), New Delhi, India.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.