Independence Day

LAST WEEK, there was a big event at The Hague that went virtually unnoticed hereabouts. On July 22, the International Court of Justice held that Kosovo’s unilateral declaration of independence from Serbia did not break international law. When the matter first arose, Foreign Secretary Alberto Romulo said that while the Philippines does not oppose Kosovo’s independence, we would prefer a settlement “taking into account the internationally accepted principles of sovereignty and territorial integrity.” That is diplomatese for saying that Kosovo’s secession could complicate our peace talks with the Moro Islamic Liberation Front.

Mercifully, our worst fears did not come to pass and the Kosovo opinion, while it adds to the rhetorical armory of Islamic rebels, should not worry our government too much. With regard to the war in Mindanao, the most important parts of the Kosovo ruling are the parts that have been left out. That is why those who know of the issue solely by reading the text of the ruling inevitably miss out its true import.

One, the World Court or ICJ has two kinds of jurisdiction: “contentious” (between states, one suing the other) and “advisory” (upon legal questions submitted by international organizations). This is markedly different from Philippine courts which emphatically are limited to actual cases and controversies, and are averse to giving mere advice. The Kosovo ruling was one such “advisory opinion” upon a question posed by the UN General Assembly. While much has been made of the fact that the opinion is non-binding even on the General Assembly (as practical Pinoys would say—“advice na nga lang, opinion pa”), even more significant is that the advice wasn’t sought by the UN Security Council, the only UN body with the power to take binding actions on matters of international security.

Indeed, take a look at the ICJ’s advisory opinion on the concrete barrier that Israel built to keep out suicide bombers. How you label the fence/wall instantly defines your position: “separation fence,” “security fence,” “anti-terrorist wall,” “Palestinian wall,” or “apartheid wall.” The ICJ rendered an advisory opinion saying that Israel had thus violated international law, yet that didn’t stop Israel’s Supreme Court from holding that the fence/wall was in principle a valid measure, though certain portions were so burdensome for the neighboring residents that the means was no longer “proportional” to the ends.

Two, the Court deliberately narrowed its ruling lest it open the floodgates to secessionism the world over. The ICJ validated the declaration of independence itself, but remained silent on the right of secession. Nor did the court declare a duty by other states to recognize the breakaway state, leaving it to each state to make that political decision for itself. Most telling, it avoided the question that the “aggrieved” Serbia really wanted to ask: whether those 69 states that have recognized Kosovo had acted improperly.

Third, it is difficult to equate the Mindanao and the Kosovo situations. Serbia reversed the historical autonomy of Kosovo, ethnically Albanian and distinct from the Serbian majority, culminating with genocidal murders of 1999 that was stopped only by a 78-day bombing campaign by the Nato powers. Serbia lost control of Kosovo, which was taken over by a UN-organized government. The Mindanao conflict is, but for the intercession of the Organization of the Islamic Conference, wholly domestic and cannot by any measure be analogized to Kosovo.

Fourth, there are countervailing rulings in other cases where the ICJ was wary of the potential clash between the people’s right to self-determination and the state’s claim against territorial fragmentation. For instance, it has upheld the “uti possidetis” rule (Latin for “as you possess”) preserving inherited colonial boundaries to avoid “fratricidal struggles provoked by the changing of frontiers” after the grant of independence.

For sure, international law consistently says that self-determination is trumped by territorial integrity. It condemns “any action which would dismember or impair, totally or in part, the territorial integrity” of states. But this rule is not absolute. It protects only those states that practice non-discrimination “as to race, creed or color.”

Some Filipinos today seem unsympathetic to self-determination claims because they think in terms of the disgraced Nur Misuari. I plead with them: Please think of it normatively too in terms of Emilio Aguinaldo. Had we applied these tests to our own beloved fledgling republic in 1898, would we have passed muster? Certainly there are so many factual ways to distinguish Aguinaldo’s revolution from the MILF’s: their bona fides as the people’s voice, the discredited leadership, and godsakes, the kidnap-for-ransom gangs masquerading as liberation fighters, and using religion as a cloak for secular, even criminal, conspiracies. But please. Make the factual distinction, but without sabotaging the normative tests for self-determination.

The minimalist ICJ response should leave enough room for the negotiated settlement that Romulo wished for the Kosovars and impliedly for the Filipinos. That negotiation should shift away from purely symbolic and token concessions that do not filter down to the common folk, and toward substantive issues like health, education and social welfare. It is at that level— creating schools for our children, hospitals where mothers give birth and ailing grandparents find solace, affordable shelters for families, and a fair wage for the workingman—that we, Bangsa Moro and Filipino alike, can rediscover that common language in which we dream.

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