It’s about self-determination not historic title

Dalam suasana krisis tuntutan apa yang disebut sebagai Kerajaan Sulu - dan seterusnya Filipina -  ke atas Sabah, dan pencerobohan beratus-ratus orang yang bersenjata  di Lahad Datu, Semporna dan tempat-tempat lain, artikel berikut merupakan suatu penulisan yang waras daripada seorang Filipina mengenai isu tuntutan Sulu, dan Filipina, ke atas Sabah.

Artikel asal boleh dibaca di alamat berikut: http://aer.ph/?p=5609 

Artikel kedua, urutan daripada artikel pertama, menyambung lagi hujjah beliau, dan dapat dibaca di alamat: http://aer.ph/?p=5615

It’s about self-determination not historic title

By Manuel Buencamino • February 27, 2013

Historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium. – International Court of Justice

There are persuasive legal and historical arguments to support the Philippines’ claim to Sabah. However, wonderful as those arguments may be, we have no right to claim Sabah because the people of Sabah have spoken and they have no interest in becoming a part of the Philippines. They voted to join Malaysia through a referendum conducted in 1963.

Although the Philippine claim to Sabah has not been brought before the International Court of Justice (ICJ), the ICJ has ruled in the Application by the Philippines for Permission to Intervene in the sovereignty case between Indonesia and Malaysia over Pulau Ligitan and Pulau Sipadan that “historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot — except in the most extraordinary circumstances — prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.”

The Court also pointed out, “Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial title erga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a ‘people’ into this traditional legal scheme, notably the right of peoples to self-determination, fundamentally alters the significance of historic title to the determination of sovereign title.”

Sa madaling salita, walang ibig sabihin ang historic title mo kung ayaw ng mamamayan na magpailalim sa poder mo because in this post-colonial world “the principle of self-determination of peoples” rules. Self-determination na ang basehan ngayon. It trumps historic title every time.

The ICJ also upheld the 1963 Sabah referendum,

“15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self-determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”

“16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self-determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self-determination. The Court cannot be a witting party to that.” (Read the entire decision here.)

President Aquino is right, the Sabah claim is a hopeless cause. And he is not the first president to see this. Unfortunately, there are still many intelligent Filipinos who believe we have a legitimate claim to Sabah, based on historic title. Consequently, no Philippine president will want to be seen as the one who “lost” Sabah even though we already lost it in the Sabah referendum held 50 years ago.

Sabah is for Sabahans. If they chose to belong to Malaysia then so be it, we have to respect their choice. Period.

As to the proprietary claim of the Sultan of Sulu over Sabah, please naman huwag na niya idamay ang buong bayan diyan. It’s a personal proprietary claim, it is not a matter of national interest.

Hopefully, President Aquino will set the record straight.

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Sabah is about self-determination, not historic title
(Part Two)

By Manuel Buencamino • March 4, 2013

I would rather have a country run like hell by Filipinos than a country run like heaven by the Americans, because however bad a Filipino government might be, we can always change it. – Pres. Manuel L. Quezon

I offended a number of people with my article last week, “Sabah is about self-determination, not historic title.” I was called a lying bastard, a traitor siding with Malaysia, a bourgeois reactionary, a sipsip, a coward, and a yellow zombie, among other names. I was also accused of looking for a job in Malacañang and cherry-picking documents. All of that because I said the principle of self-determination, citing the non-binding opinion of a judge in the International Court of Justice, overrides historic title.

A whole system of beliefs rests on the primacy of historic titles. I came along to remind believers that political evolution had overtaken their religion, and consequently the Kiram translation of an agreement between a sultan and a couple of British businessmen was now of secondary importance.  Tsk-tsk, cluck-cluck. He committed heresy, let’s burn him at the stake.

But I love the heat from a burning stake.

I stand by what I wrote. The principle of self-determination overrides historic title. And it is not only the non-binding opinion of one judge in the ICJ that supports my view. I also have the United Nations Charter and a couple of international covenants to back me up.

Chapter 1, Article 1 of the UN Charter states the purposes and principles of the organization. Number two among those purposes is “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.“

Self-determination is also addressed in more specific language in Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The universal acceptance of the principle of self-determination signaled the end of the colonial age and the supremacy of historic title over the sovereign will of a people. Dozens of colonies in Africa, Asia, and the Middle East gained independence using the language of self-determination.

To argue that historic title overrides self-determination is to de-legitimize all independence movements. It is to say that people have no right to determine their political status, that they have no right to write their own story.

In 1898, Spain sold the Philippines to the United States. Those two countries took it upon themselves to decide the fate of a people that already won their independence. Filipinos had a constitution, a flag, an anthem, an army, and a government exercising sovereignty over territory. The only thing they lacked was international recognition. It was not given to them. It was given instead to the Treaty of Paris between Spain and the United States.

That is why, if you visit the Tomb of the Unknown Soldier in Arlington Cemetery in Virginia, USA, you will see that the Philippine-American War is referred to as the Philippine Insurrection. Because as far as the Americans are concerned it was not a war between two independent states, it was merely a rebellion by people that they had purchased from Spain.

In America’s eyes, the Treaty of Paris was America’s historic title to the Philippines and the Filipino peoples’ act of self-determination, that of winning a war of independence against Spain, counted for naught.

Would you accept the Treaty of Paris as a legitimate argument against the martyrs who sacrificed their lives to keep the hard-won independence of Filipinos from Spain? Would you honor America’s historic title over your forefathers’ act of self-determination?

Today, we want to elevate our claim to Sabah to the ICJ. We believe that Manila and Kuala Lumpur have the right to let the ICJ decide on the conflicting claims over the language of a business contract and consequently to determine the fate of more than a million Sabahans, an autonomous people that voluntarily joined Malaysia nearly half a century ago. That would be resurrecting the age of colonies – it is the Treaty of Paris reloaded – two capitals, Manila and Kuala Lumpur, deciding the destiny of a people not even invited to sit at the table. Tama ba ‘yan?

It has been said that the findings of both the Cobold Commission and the UN Secretary General regarding the express wishes of the people of Sabah prior to its joining Malaysia were questionable. That may have been true. At the time. But whatever chicanery may have happened then has been overtaken by time and events. By reality.

Sabahans have voted in numerous elections since Sabah joined Malaysia. Sabahans have been paying taxes. There are two Sabahans holding important portfolios in the cabinet of Malaysian Prime Minister Razak. If Sabahans were unhappy about joining Malaysia, they had fifty years to make their dissatisfaction known.

But where is the Sabah secessionist movement? Where is the Sabah for province of the Philippines movement? Where is the “we want to be subjects of the Sultan of Sulu” movement? And is there a problem with hundreds of thousands of illegal Sabahans in the Philippines or is the problem that of Filipino illegals in Sabah?

So I guess Sabahans are satisfied and happy to be in Sabah and Malaysian. Why can’t we respect that? Why do we want to wipe the smile off their faces with a historic title claim, turn them into Filipinos by judicial fiat instead of popular will? Why do we think it’s righteous to have a “Sabahans be damned as long as we get what we believe is ours” religion?

We can wave our historic title in the Sabahans’ faces until our arms fall off but if the Sabahans will not accept our sovereignty there is not much we can do about it. So my unsolicited advice is, rather than elevate our claim to the ICJ and possibly get a favorable judgment that may require military muscle to enforce, let us just convince the Sabahans that it’s more fun in the Philippines. That way maybe Sabah will ask to become a province of the Philippines.

There’s a difference between the Sabah claim and the claim to the Spratleys and Panatag. Sabah has been inhabited for thousands of years. The Spratleys became inhabited only after disputes over their ownership occurred. Meanwhile, Panatag awaits inhabitants. In Sabah, inhabitants have the right to exercise self-determination. In the Spratleys, the decisions of inhabitants are made by their home governments. In Panatag, the right of self-determination has yet to be extended to birds, fishes, and corrals.

In other words, whereas the South China Sea claims can be settled through historic titles, conventions on the laws of the sea and exclusive economic zones and all that, the Sabah claim can only be settled with the consent of the Sabahans. Our Constitution and our baselines laws have as much legitimacy as China’s nine-dash line map when it involves territory where there are people who have the universally recognized right to self-determination.

Let’s sort things out further.

It is wrong to say that Sabah is ours because Malaysia is paying us rent. Malaysia is not paying us rent. It is paying rent to the Kirams. The money goes to their bank account. It does not go to our bank account or to the government’s coffers.

Maybe the so-called rent payments are proof that the Kirams own Sabah but it’s a stretch to say that because Malaysia pays rent to the Kirams it is proof that the Philippines also owns Sabah.

If the Kirams do own Sabah and they believe they are not being compensated enough – their ancestor did not have the foresight to include an escalation clause in his lease agreement with the Brits – then they should spend their own money for lawyers to press their case; because all the proceeds will go to them if they get an upward adjustment of rentals.

Not a single centavo will go to the Philippine government or to you. The Philippine government won’t even be able to collect taxes on the income from rent if the payments to the Kirams are made in Malaysia. So what right do the Kirams have to demand that the Philippine government lawyer for them? 

The de kahon answer to that rhetorical question is to point out that the government has a duty to stand by all citizens. Okay. Let’s say your uncle decides to live in Monte Carlo. He buys property there. After some time he decides he’s had enough of the high life. He authorizes his Monte Carlo lawyer to take care of his property. His lawyer cheats him. He loses his palace. Should the Philippine government spend taxpayers’ money to help your uncle recover his palace or should he spend his own money for a lawyer?

I suppose if the government is duty-bound to lawyer and spend taxpayers’ money for the Kirams’ property in Sabah then the government must likewise lawyer and spend taxpayers’ money for your uncle’s palace in Monte Carlo, right? Maybe you are okay with dipping into your savings and paying for your uncle’s bad business decision but do you believe the entire country should pay for it? Do you think it’s right for taxes to be spent that way? Maybe your uncle should change his name to Kiram. That way he will get blind public support demanding that government place its reputation and resources – both manpower and money – for his personal property claim.

I say let Mr. Kiram that self-proclaimed Sultan of Sulu spend his own money to fix his rental problems with Malaysia. And, as far as the Philippine government’s claim of sovereignty over Sabah is concerned, it is not for Manila, Kuala Lumpur, or the ICJ to decide the fate of Sabahans.  That decision belongs to the Sabahans. By right. As a human right.

The principle of self-determination of peoples is the new paradigm. It replaced colonialism and humanity is better for it. Why bring back the dark age of colonial imperium?

Buencamino is a fellow of Action for Economic Reforms (www.aer.ph).