Bring Sabah issue to the International Court of Justice now

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The Manila Times, March 3, 2013

AS this column last Friday expressed apprehension over it, President Aquino and his officials were throwing to the Malaysian wolves Filipino Muslims digging in what they claimed was their legitimate homeland in Sabah.

Government’s do-what-you-want-to-do-with-them message to Malaysian authorities was made through such irresponsible statements from Mr. Aquino and his officials that the Sultan of Sulu’s claim was dormant, and that they would be even charged for violating our Constitution for the crime of inciting to rebellion.

And indeed, after the Malaysians’ assault that resulted in 12 of the Sulu Sultan’s men and two Malaysian soldiers killed, that country’s Home Minister Datuk Seri Hishammuddin Hussein in effect said that our government implicitly cleared their move. “The Philippine Government had already said that it wanted those involved to return to the Philippines,” the Malaysian new website quoted the home minister as saying.

Especially with blood now on his hands, Mr. Aquino must comply with his oath of office—that he will defend the Constitution and implement the laws of the land—by pursuing our territorial claim over Sabah. The Philippine claim on Sabah is only dormant— as a presidential spokesperson claims it is—if one believes that certain laws, Republic Acts, can be treated as “dormant.”

Republic Act No. 5446 enacted in 1968 was never repealed, and its Section 2 says:

The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.” (Emphasis mine). A dormant claim? Mr. Aquino and his spokespersons are demonstrating such scandalous level of ignorance about such an important issue.

In 13 March 2001, about two months in office, president Gloria Arroyo’s government filed a petition to intervene at the proceedings of the International Court of Justice (ICJ) on the territorial dispute over the islands of Pulau Ligitan and Pulau Sipadan between Indonesia and Malaysia. (Yes, that’s the island where the Abu Sayyaf kidnapped foreign tourists in 2000.)

What’s the basis of the Philippines attempt to intervene in the case? Two of the reasons our country cited in the suit:

“[a] First, to preserve and safeguard the historical and legal rights of the government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that these rights are affected, or may be affected, by a determination of the court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan.

“[b] Second, to intervene in the proceedings in order to inform the Honorable Court of the nature and extent of the historical and legal rights of the Republic of the Philippines which may be affected by the court’s decision.

“Does that sound like the Philippines forgetting its Sabah claim?

However, the ICJ dismissed the Philippines motion to intervene, but not because it found without basis its claim over Sabah. The ICJ dismissed the petition on technical grounds, that the period for such pleadings to intervene had lapsed: “By the time of the filing of the application, 13 March 2001, the Parties had already completed three rounds of written pleadings as provided for as mandatory in the Special Agreement-Memorials, Counter-Memorials and Replies their time limits being a matter of public knowledge.” (Malaysia won the case though, and retained control of Sipadan.)

This brings us to this column’s main point: The Philippines must file a case at the International Court of Justice to settle the Sabah issue. Mr. Aquino owes that to the Filipino Muslims killed by Malaysians the other day. He owes it to the nation to do so since we have a law saying we have sovereignty over Sabah.

Aquino and his foreign affairs secretary believe that it is the United Nations Convention on the Law of the Sea (Unclos) which has jurisdiction over territorial disputes, just because the disputed areas are in the middle of the South China or West Philippine Sea. However, cases brought to and decided upon by the International Tribunal on the Law of the Sea ( Itlos) have mostly been such maritime disputes as seizure of commercial ships by countries claiming they violated their exclusive economic zones.

The UN’s ICJ on the other hand, whose decisions can be enforced by the powerful UN Security Council, has been hearing and deciding territorial disputes among nations since after the war, even such explosive cases as that between Chad and Libya and between Honduras and El Salvador.

As in cases brought before Itlos however, the ICJ assumes jurisdiction over a particular territorial dispute only if both parties agree to do so or if the two countries have a treaty requiring them to agree to the ICJ’s jurisdiction. Only in a few cases has the ICJ assumed jurisdiction over a dispute even if one party refuses to accept its authority.

Filing a case at the ICJ over a territorial dispute isn’t unprecedented among countries of the Association of Southeast Asian Nations. Other than the squabble between Malaysia and Indonesia over Pulau Ligitan and Pulau Sipadan, the century-old dispute between Cambodia and Thailand regarding sovereignty over the lands around the ancient Temple of Preah Vihaear — which had even resulted in bloody firefights between the two countries’ armies —is pending at the ICJ.

We can blah-blah forever arguing whether or not the nation, or the sultanate of Sulu has sovereign rights over Sabah, or that it’s better to forget the issue since we need Malaysia to arm-twist the Moro Islamic Liberation Front to lay down their arms.

But we are a nation under a rule of law, and we have law saying that we have sovereignty over Sabah. Until that law is repealed, a president is required by his oath to exercise that sovereignty peacefully. It is even theoritically an impeachable offense if he relegates on that duty.

The only option to pursue that responsibility is to ask a third party given such role to decide on international disputes by nearly all nations on earth, the UN’s ICJ. And as has been the effect of most decisions by the ICJ, this would finally end an irritant or even flashpoint between our country and Malaysia.

I cannot understand why Mr. Aquino’s administration rushed to file a case in Unclos against China over the Spratleys’ issue, yet hasn’t filed a case over a territorial dispute that involves Filipino Muslims’ future—and lives. Or is was the Unclos “suit’’ (if it can even be termed that) made merely at the US bidding, which wants to humiliate its emerging rival superpower in Asia in any way possible?