Aquino blew opportunity

Had there been a strong-willed president, which Noynoy Aquino was not, when the 2013 Lahad Datu incursion happened, negotiations should have started regarding the territorial dispute.

On 14 February 2013, some 200 followers of the Sulu sultan, calling themselves the Royal Sulu Army, without the consent of the Philippine government, marched into Sabah, presumably to reclaim it.

On 1 March of the same year, a shootout between the Filipinos and the Malaysian security forces ensued. This was rapidly followed by firefights, battles in cyberspace, and even attacks from jetfighters.

On 7 March, the sultan’s camp declared a unilateral ceasefire, only to be rejected by Malaysia.

According to international legal luminary, the late Sen. Miriam Defensor Santiago, Aquino should have resorted to the Pacific Settlement of Disputes with Malaysia to start the ball rolling on the negotiation process.

Santiago noted there is an agreement between the Philippines and Malaysia on the conflicting claim, since both use the 1878 deed signed by the Sulu sultan in favor of two representatives of a British company as basis. The difference lies in its interpretation.

“Therefore, the endgame should be to promulgate a treaty-based regime in Sabah. That is the long-term goal; but the short-term goal should be to extend immediate diplomatic protection to Filipinos in Sabah by means of a fact-finding mission,” she explained.

Under the United Nations Charter, international law requires the Pacific Settlement of Disputes under Article 33, the provisions of which stated that the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Under the 1907 The Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and fact-finding can be used “to facilitate a solution of... disputes by elucidating the facts by means of an impartial and conscientious investigation.”

This means, according to Santiago, that the Philippines and Malaysia should have agreed on a third party to carry out an inquiry, “which should precede any Pacific Dispute Settlement, specifically negotiation, mediation, good offices and conciliation.”

The 1907 The Hague Convention provides for an International Commission of Inquiry.

Santiago said such fact-finding commissions have been used by the United Nations and other international organizations to investigate disputes such as:

• The involvement of mercenaries in an invasion of the Seychelles in 1981;

• The use of chemical weapons in the Gulf War between Iran and Iraq in 1987; and

• The destruction of Korean Airlines Boeing 447 in 1988. The UN General Assembly approved the 1991 “Resolution and declaration on fact-finding by the UN.”

The declaration defines fact-finding as: “Any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent UN organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security.”

Santiago’s opinion was that the disputants should have settled the dispute in the first instance by the method of inquiry and fact-finding.

“This method does not resolve the investigation or application of rules of law. What actually happened during the recent Sabah event? Does the resort to armed force confer state responsibility on Malaysia for internationally wrongful acts?” Santiago posited right after the catastrophic attack of the Sultan’s army.

She added that under modern international law, the forceful actions of states are limited by the principle of necessity and the principle of proportionality.

The issues that needed addressing then were the questions about necessity, which is a component of legitimate self-defense and requires that any forceful action must be by way of last resort.

“Proportionality is the principle that the use of force should be in proportion to the threat or grievance provoking the use of force,” she said.

In contrast, Aquino, in classic Noynoying, refused to lift a finger on the Lahad Datu incident and left everything in the hands of then Malaysian Prime Minister Najib Razak, who was recently convicted of corruption charges.

“Aquino, in classic Noynoying, refused to lift a finger on the Lahad Datu incident and lef t everything in the hands of then Malaysian Prime Minister Najib Razak.

“Santiago noted there is an agreement between the Philippines and Malaysia on the conflicting claim.