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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