MIRIAM SEEKS THIRD-PARTY INQUIRY,
FACTFINDING ON SABAH VIOLENCE

Sen. Miriam Defensor Santiago said the Philippines and Malaysia should avoid further bloodshed in Sabah, by agreeing to appoint a third-party to conduct under international law "inquiry and factfinding" on the recent spate of violence between Filipinos and Malaysian security forces.

Santiago said that in July when Congress begins session, if necessary, she will file a resolution "Expressing the sense of the Senate that the Philippine President should invite Malaysia to agree on a third-party who shall conduct an inquiry and factfinding on the alleged violent acts during the recent Sabah event."

She issued the statement during her keynote speech at the annual convention of the Association of Nursing Service Administrators of the Philippines (ANSAP), held yesterday (March 15) at the Manila Hotel Fiesta Pavilion, and attended by some 1,000 nurses from all over the country.

The senator said that under the 1907 Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and factfinding can be used "to facilitate a solution of disputes by elucidating the facts by means of an impartial and conscientious investigation."

She said the method of inquiry and factfinding does not involve the investigation or application of the rules of law.

Santiago said that a 1991 UN Resolution defines factfinding as: "Any activity designed to obtain detailed knowledge of the relevant facts to any dispute or situation which competent UN organizations need in order to exercise effectively their functions in relation to the maintenance of international peace and order."

"Under international law, impartial factfinding facilitates peaceful settlement of disputes, particularly settlement by negotiation, mediation, good offices, or conciliation," she said.

Santiago said that the United Nations and other international organizations have availed of inquiry and factfinding in such cases as the 1981 involvement of mercenaries in an invasion of the Seychelles; the 1987 use of chemical weapons in the Gulf War between Iran and Iraq; and the 1988 destruction of Korean Air Lines Boeing 447.

Even as she called for inquiry and factfinding, Santiago said that it is urgent for the Aquino administration to implement the principle of diplomatic protection over Filipino nationals.

"International law prohibits the use of force. But there is an unwritten exception which allows states to protect or rescue their nationals by means of armed forces in the territory of another state. However, this exception should not be invoked, unless the Philippines has to carry out rescue operations," Santiago said.

The senator said that before the Philippines can undertake rescue operations in Sabah, the government should observe the following preconditions:

1. The life of Filipino nationals should be genuinely in danger.

2. Malaysia is unwilling or unable to ensure the safety of the persons concerned.

3. The Philippines does not pursue any other purpose at the occasion of the operation.

4. The scale and effects of the military force used are adequately measured to the purpose and conditions of the operation.

Santiago cautioned that any rescue operation should observe the principle of necessity, as well as the principle of proportionality.

Santiago gave the following definitions: "Necessity is a component of legitimate self-defense, and requires that any forceful action must be by way of last resort. Proportionality is the principle that the use of force should be in proportion to the threat or grievance provoking the use of force."

At the start of her speech, Santiago said that the disputed 1878 Deed over Sabah executed by the Sulu sultan in favor of two Europeans is described as a "deed of pajak," meaning lease.

She said that since the Deed was merely a lease, the Sulu sultan never transferred sovereignty to the Europeans, who eventually formed the British North Borneo Co. (BNBC) which later transferred sovereignty to the British crown and then to Malaysia.

"Since no transfer of sovereignty was involved in the 1878 Deed, no transfer of sovereignty has ever passed to Malaysia," she said.

The senator even quoted several statements by the British foreign minister at that time, Lord Granville, that sovereignty remained in the Sulu sultan.

Santiago said the Philippines has never abandoned its Sabah claim because Sabah is rich in oil and gas reserves, and Sabah could be used by terrorists as a springboard of a pan-Islamic state, thus raising a security risk.