MEL STA.MARIA | The problem with President Aquino's Feb. 26, 2013 statement on Sabah Issue
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Leadership should be born out of the understanding of the needs of those who would be affected by it.-Marian Anderson
Since 1962, the Philippines has been very clear on its position on Sabah. Through the efforts of international law stalwarts, former Senator Jovito Salonga and the late Arturo Tolentino, the Philippines has successfully shown that through historic title and cession, two methods universally accepted as valid modes for acquiring property in international law, Sabah is in Philippine territory. But as I said in my previous article, SABAH IS OURS. WE SHOULD CLAIM IT, somehow the government’s enthusiasm to assert our territorial claim waned. It is only now that it has taken prominence again.
On February 12, 2013, followers of Sultan of Sulu Jamalul Kiram III landed on Lahad Datu in Sabah and proclaimed their intent to reclaim their homeland. Some of them were armed. Alarmed, Malaysian authorities ordered them to move out. They remained and declared that they will stay there to the death “leaving everything to the will of God.”
The context of this action by the Sultan of Sulu and his followers is beyond question. It is not a power-grab. Neither is it a land-grab. It is a reassertion of their historic, legal and moral right to be in Sabah, the vast track of land in Northern Borneo controlled by the Federation of Malaysia. It was for them the pursuit of a noble cause.
In his press conference in the morning of February 26, 2013, President Aquino asked our brotherr-Muslims in Lahad Datu to leave peacefully. I can understand this plea because nothing can be achieved through violence. I agree with that. But addressing Sultan Jamalul Kiram III, the President, reading a prepared statement, stated among others:
“You are a leader of your clan, and every leader seeks the well-being of his constituents. These times require you to use your influence to prevail on our countrymen to desist from this hopeless cause.”
It must have been a totally disappointing and devastating feeling for Sultan Kiram and his followers to hear that their noble cause is, for the President of the Philippines, “a hopeless cause.”
To desist from this hopeless cause.” Surely, if the President was referring to the manner by which the cause is being pursued, it would have been very easy to say “to desist from this overt intrusion into Sabah”. But he did not. It is clear that he was clearly referring to the “cause” itself. And what is that cause? It is the assertion that Malaysia has no ownership rights over Sabah and that such ownership rights belong to the Sultanate of Sulu over Sabah which is rightfully within Philippine territory. The position of the Sultanate of Sulu is, in fact and in law, exactly the international claim of the Philippines on Sabah against Malaysia.
But the President has now unilaterally and publicly declared that it is a “hopeless cause.” Considering that President Aquino is the Chief Executive, Commander in Chief and the premier Foreign Affairs head of the government of the Republic of the Philippines, he must have known, or perhaps, even if he does not know, his advisers must have known and should have counseled him, that any statement uttered by the President may officially be given the greatest weight in international law as far as foreign policy is concerned. And considering that there is an international conflict between the Philippines and Malaysia in this Sabah issue, President Aquino’s public pronouncement may be legally taken against the Philippines’ territorial claim. For “lost cause” implies surrender, capitulation or even abandonment of an interest. The statement may be taken as a categorical declaration that the Philippine government, through the President, has expressed its abandonment of the Philippine’s Sabah claim. This is unfortunate.
In public international law and in matters involving international conflict, unilateral declarations of responsible state official may create binding legal effects and commitments upon the state of which he/she is an officer. This has been the consistent pronouncement of the International Court of Justice (ICJ) in a number of international cases. In the Nuclear Test Ban Case between New Zealand and France, the ICJ, explaining this doctrine, said
It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. (Nuclear Test Case: New Zealand and Australia vs. France, International Court of Justice , 1974 ICJ 253, 457)
The phrase “hopeless cause” is precise and easily understandable. Could there have been any other intent in making such a declaration other than to relay an official position that the Philippines has abandoned its Sabah claim? Maybe yes and maybe not. But, for whatever it may be worth, the Malaysians will most likely insist that President Aquino’s hopeless-cause-statement is an internationally binding unilateral declaration with a “character of a legal undertaking,” for which the Philippines should be required to “ follow a course of conduct consistent with the declaration.”
Indeed, the President might just have given additional arguments for Malaysia in strengthening their own Sabah claim. The Philippines can probably resist or clarify this hopeless-cause-statement, but the President, by this ill-advised declaration, might just have, wittingly or unwittingly, given the Philippines an unnecessary legal hurdle in international law.
In the later part of his February 26, 2013 press statement, the President warned Kiram and his followers with the filing of criminal cases should they persist in their course of action. He even quoted the Philippine Constitution and the Revised Penal Code. This was utter insensitivity to the deeply rooted historical, cultural, political and even personal problems involved in the Sultanate’s territorial claims. Instead of encouraging a spirit of unity, the President might have just alienated Sultan Kiram and his followers.
Under international law, a country has the right to extend “diplomatic protection” to its citizens abroad. Diplomatic Protection means not only protection for ambassadors or consuls but also for ordinary citizens abroad. Even if President Aquino believes that the Filipino-Muslims now in Lahad Datu in Sabah have done something inappropriate, he must still make sure that their rights as human beings will not be violated by Malaysian authorities. They must still be accorded all the necessary assistance especially when the problem now is gaining international attention.
The Philippines must be ready to represent them in case of trouble. One of the greatest international scholars Emmerich De Vattel said that "Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen." Without necessarily supporting the manner by which they are asserting their claim, the President can still support their cause. Instead of embarrassing them, the President must show concern and understanding and a readiness to run to their protection in case they are maltreated by Malaysian authorities. Our Muslim-countrymen and women must be extended diplomatic protection.
In the question-and-answer portion of the press conference, The President, with Secretaries De Lima and Roxas behind him, said that he and his Cabinet will study whether or not the claim of Sultanate of Sulu is legitimate. He even showed a cart of the ancestral lineage of the Sultanate of Sulu. This betrays the kind of ignorant advise the President is getting from his legal advisers. As early as 1962, the Philippines already had a clear position. Sabah should be claimed because it is Philippine Territory and the interest of the Sultanate of Sulu must be protected.
If the President and his legal advisers will study the matter, I would advise them to get the exhaustive researches of no less than Senator Jovito Salonga, a well known international legal scholar, and Arturo Tolentino, likewise an international law scholar. Before our claim was made, these legal luminaries studied exhaustively the matter and they have concluded that Sabah belongs to the Philippines, such that, by a unanimous resolution of the House of Representatives in 1962, it was resolved that a claim must be vigorously made.
It is important for the President to make pronouncements and speeches. But this statement made on February 26, 2013, though forceful in tone and definitely comforting to the Federation of Malaysia, was dangerously alienating to our brother Filipino Muslims and maybe prejudicial to our government’s Sabah claim.
My unsolicited advice to the President is this. The very famous international diplomat Henry Kissinger said: “The task of the leader is to get his people from where they are to where they have not been.” Mr. President, it is now time to get the present Sultanate of Sulu and their followers “from where they are to where they have not been.” And “where they have not been” is a peaceful place where they can peacefully settle and call home: SABAH. Get all the brilliant minds and move that diplomatic mill and restart the Philippine efforts to peacefully retake Sabah in accordance with international law.