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Opinion | Special Features

MEL STA.MARIA | The problem with President Aquino's Feb. 26, 2013 statement on Sabah Issue
The online news portal of TV5

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.