The Sabah standoff and the Palmas case

Let’s not even talk of the Philippine title to Sabah which the P-Noy administration is apparently still studying. Let’s just talk about basic obligations, and not just privileges of states.

As early as 1928 in a case where we lost title over the Island of Palmas, international law recognized that states have concomitant obligations with their rights as sovereign. As held by the lone arbitrator Max Huber: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”

The right of a state to claim rights for its nationals abroad is referred to as “diplomatic protection.” Here, the duty of the state is to ensure that states treat their nationals abroad in a manner that complies with human standards recognized under the International Covenant on Civil and Political rights, among other documents.

In connection with the current standoff in Sabah, this should mean that the primary obligation of the Philippine government is to ensure the safety of the 200 or so followers of the Sultanate of Sulu, as well as to ensure that Malaysia should comply with its duty to protect and promote their human rights, which should include the right to life and the right to due process of law.

Stripped of legalese, the Philippine government owes the Filipinos holed up in Sabah the duty to ensure that they do not become victims of extralegal killings. There is an extralegal killing when the taking of life is without due process of law. This means that before Malaysians can shoot at our countrymen, they should apprehend, prosecute and find them guilty of violating Malaysian domestic law before they are meted the penalty of death.

The Philippine government’s response to the standoff has, however, been deplorable. Instead of taking steps to espouse the human rights of our fellowmen in Sabah, it has openly sided with Malaysian authorities and has all but warned them that their massacre is inevitable. Worse, the government appeared to have ordered them to return so that they can be prosecuted criminally in the Philippines for rebellion and other crimes. With this kind of conduct by the Philippine government, who needs government to give this kind of protection?

The P-Noy administration should make the safety of our nationals nonnegotiable. If we can plead with leaders of the world to spare convicted drug mules from being meted the death penalty, why should we not plead likewise for 200 or so of our countrymen who are in Sabah to seek redress for their grievances as those with title to the island of Sabah?

It does not help any that Philippine authorities appear ignorant of the Sabah claim despite the fact that it is in Article 1 of both the 1935 and 1987 Constitutions. The government’s initiatives to still study the Sabah claim brings to mind the legal saying that “ignorance of the law excuses no one from compliance therewith.” In this regard, Philippine authorities should blame themselves for their ignorance of the Sabah claim. They should certainly not be negligent in their obligation to provide protection to Filipinos overseas because of their own ignorance.

H. Harry L. Roque Jr. is the director of the UP Law Center’s Institute of International Legal Studies.