Stalemates in Sabah and the Spratlys

The stalemates in Sabah and in the Spratly chain of islands have one essential thing in common: They both represent a legal dilemma. China and Malaysia will not consider arbitration by the United Nations in fear that they will lose the case. They prefer to hold on by force because they have the upper hand. So no matter how good our arguments and our lawyers, no matter how valid our legal rights, when the chips are down we have nothing.

At a roundtable on Sabah hosted by the Asian Institute of Journalism and Communications (AIJC) at the ICTV Building in Quezon City late last month, former Ambassador Lauro Baja Jr., a former Philippine permanent representative to the UN, former Ambassador Jose Romero Jr., and Amina Rasul Bernardo of Tausug royalty cited a number of possible diplomatic options after providing a comprehensive history of the centuries-old issue. But, alas, all the diplomatic options raised were mere crumbs for us to pick up.

Asked if we have an option to acquire what is rightfully ours, Baja said: “None. The only way is to go to war. (The AIJC roundtable can be viewed at https://roundtable.nowplanet.tv/.)

Baja, however, cited the UN “Principle of Effectivity” as a possible window toward acquisition without war. He said China is using this principle cleverly against Russia (regarding Siberia), the Philippines (regarding the Spratlys), and Cambodia, Vietnam, and even North Korea, its own ally. The principle is an exercise of sovereign rights by “quasijudicial” means, when a nation has occupied a disputed territory undisturbed for a number of years or without protest.

Simply put, if you move in and no one complains, the place is yours.

The fact that we have occupied certain islands in the Spratlys for many years now gives us a right to stay under the UN Principle of Effectivity. In fact, we held elections on one such island recently. But China may not respect this UN principle as much as it has rejected UN arbitration. China can either massacre or expel us. But it will not resort to a heinous act in the eyes of the international community, in the way that Gen. William Westmoreland and Gen. Douglas MacArthur could not employ genocide in Vietnam and Korea, respectively. So it is not the UN principle per se that matters but the “principle of moral decency” in the eyes of the world.

Vietnam, Taiwan, China, Korea, and the Philippines have occupied parts of the Spratlys in the last decade, some with airports, deep-water ports, and oil-exploration rigs. All these have rights based on the UN Principle of Effectivity. So now, it is a race to occupy. Each country may put up its own oil rig, if it is sitting above an oil find. It will be one big free-for-all.

In the case of Sabah, the Tausug may also cite the UN Principle of Effectivity, having occupied certain areas undisturbed for many years now. Again, Malaysia may not respect the UN principle, just as it is rejecting UN or international arbitration. But it faces a dilemma. Option 1 is to commit genocide of the Tausug, which it will not do under the “principle of moral decency.” Option 2 is a protracted guerrilla war in the rainforests, which is happening now. As long as the Filipino rebels establish a presence, as long as they “occupy,” just like on Wall Street, the issue will not die. The UN has in the past recognized rebel governments as legitimate. If the UN tribunal decides in our favor with China  in  absentia, then the rebels have an implicit right to rebel or even “invade” their own land.

A powerful nation can finance a Sabah rebellion in exchange for rights to oil extraction. In the civil wars in Libya and Syria, foreign nations like the United States have joined the conflict. The British will back Malaysia because of its vast palm oil plantations in Sabah, unless the rebels make a deal that the plantations can stay. There will surely be escalation with big powers. Palm oil is peanuts compared to black oil. A Sabah rebellion promises to be a bitter and bloody one.

If the Sabah rebels are backed by a powerful Middle East nation, the United States, or even China (in exchange for concessions in the Spratlys, perhaps), covertly or overtly, money and arms will flow, which may trigger a mass exodus of poor Muslim Filipinos from Mindanao to Sabah to join the rebellion. The rebels can do this with or without the support of the Philippine government, which has been namby-pamby in its policy toward Sabah. Without Philippine support, Sabah can become a UN-recognized independent Islamic state under the Tausug royalty. With support, the Philippines has a stake, but if it takes the lion’s share and leaves the Muslims with bread crumbs, especially in the oil income, the latter may again rebel against the government.

The Philippine government has not been doing its homework. It has no clear strategy in the cases involving Sabah and the Spratlys. President Aquino is said to have set up a study committee. But according to Baja, in the UN, setting up a study committee is tantamount to junking a project.

Bernie V. Lopez ([email protected]) is a radio-TV broadcaster and has been writing political commentaries for the past 20 years.