Peaceful ways to settle Sabah disputeBy Artemio V. Panganiban |Philippine Daily Inquirer
Both our Constitution and the United Nations Charter prohibit war and the use of force in settling disputes. Article 33 (not 51, as I wrote two weeks ago; thanks to eagle-eyed reader Zara Mari Dy of the College of Law, Silliman University) of the UN Charter obligates its members, including the Philippines and Malaysia, to “first of all, 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.”
Judicial settlement. Of these peaceful methods, the hands-down favorite of many Filipinos is judicial settlement in the International Court of Justice (ICJ), the “principal judicial organ of the United Nations.” The ICJ is composed of 15 “independent” judges (they are not called “justices”) elected by “absolute majority of votes in the General Assembly and in the Security Council,” voting separately, for a term of nine years. They may be reelected.
ICJ judges are required to be “of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or jurisconsults of recognized competence in international law.”
The present head of the ICJ is Peter Tomka of Slovakia. (His official title is president, not chief justice.) Its current members or judges are from Brazil, China, France, India, Italy, Japan, Mexico, Morocco, New Zealand, Russia, Somalia, the United Kingdom, the United States and Uganda. Only one Filipino has ever sat in the ICJ—Chief Justice Cesar Bengzon (now deceased). A few years ago, Sen. Miriam Defensor Santiago ran for an ICJ seat but unfortunately lost.
(Parenthetically, the ICJ should be distinguished from the International Criminal Court, or ICC, to which Senator Santiago was elected on Dec. 12, 2011. The ICC was born on July 1, 2002, when the treaty creating it, called the Rome Statute, took effect. Unlike the ICJ, the ICC is not an organ of the UN, but like the ICJ, the ICC is headquartered in The Hague, Netherlands)
Consented jurisdiction. Only states may be parties in “contentious cases” in the ICJ. Since the Sultanate of Sulu is not a state, it cannot sue or be sued there. On the other hand, the Philippines—being a sovereign state—may file suit. The jurisdiction of the court over contentious cases depends on the consent of the parties. Hence, if Malaysia refuses to be a party, then the ICJ cannot acquire jurisdiction and cannot hear the Sabah dispute, much less render judgment thereon.
An ICJ decision has no binding force except as between the parties. Once a state agrees to sue or be sued, it effectively obligates itself to obey the judgment. If the defeated party does not, the winning party may ask for sanctions in the UN Security Council, which in turn is obligated to find ways to enforce it, including the use of peacekeepers.
Unlike Philippine courts, the ICJ may render “advisory opinions” when requested by a UN organ (like the General Assembly or Security Council) or a specialized UN agency (like the International Labor Organization), if authorized by the General Assembly. While advisory opinions are not binding, they enjoy great persuasive effect and respect.
However, the ICJ may refuse to render an advisory opinion if the question asked relates to a pending dispute between two states, or if it needs more facts and information that cannot be obtained without hearing the concerned parties in a formal suit.
Security Council and referendum. UN members may bring directly to the Security Council or the General Assembly any dispute that threatens international peace and security. This referral becomes obligatory when the parties fail to settle their disputes by any of the peaceful methods listed in Article 33 of the UN Charter, and when such failure may result in the rupture of international peace and security.
In dealing with such referral, the Security Council may “call upon” the parties to continue their peaceful methods of settlement, or recommend recourse to the ICJ, or in the extreme, work out directly the terms and conditions of settlement.
Another peaceful method is recourse to regional agencies or organizations, like the Association of Southeast Asian Nations (Asean) in which both the Philippines and Malaysia are members. But again, patience and diplomacy are necessary because regional (and international) bodies are always respectful of the sovereign equality of states and are cautious about imposing their will on them.
Despite this limitation, regional organizations, like the Organization of American States and the African Union, have been successful in settling disputes among their members.
Finally, there is the very political solution of self-determination, meaning a referendum or plebiscite to determine the will of the people of Sabah. Again, this depends on the agreement of Malaysia, which exercises actual (at least, de facto) sovereignty over Sabah. Note that Malaysia is of the position that a referendum was conducted in 1963 in which the Sabahans allegedly opted to be under Malaysian sovereignty.
A plebiscite or referendum includes the possibility that the Sabahans might vote for independence, instead of being under the tutelage of Malaysia or the Philippines. A fair, open and free plebiscite under the auspices of an independent body like the United Nations or even of Asean may be the most feasible and lasting solution to this festering problem.
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