Page 1 of 24

Connecting the Dots — the Sabah Issue, the Mindanao Conflict, and Competing U.S. - China Interests in the South China Sea

The peace negotiations between the Philippine government and the Moro Islamic Liberation Front (MILF) have brought about a series of documents which constitute the cumulative points of agreement between parties and are the background material that underpin the most recent and current focus of Congressional scrutiny – the proposed Bangsamoro Basic Law (BBL). Emotions are high and public opinion is divided. It is time to step back and take a wider view of the situation before plunging ahead. This paper looks at events that go back as far as fifty years ago, even further still. It will bring up facts that now form part of our national history. It proposes to “connect the dots” – to tie together (1) the background of the unresolved Sabah issue, (2) the advent and evolution of armed conflict in Mindanao, (3) the competing strategic interests of China and the United States in the South China Sea which can lead to wider regional conflict, and (4) disturbing recent developments or events that may bear upon the Mindanao peace outlook. 1. The unresolved Sabah issue 1.1 The North Borneo Agreement of 1878 Source: Official Gazette of the Republic of the Philippines, “Letter of Francis B. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino”. http://www.gov.ph/1947/02/27/letter-of-francis-b-harrison-to-vice-president-and-secretary-of-foreign-affairs-elipidio-quirino/

On January 22, 1878, Sulu Sultan Jamalul Alam signed an agreement with two individuals, Alfred Dent of London and Gustavus Baron de Overbeck, the Austrian consul-general in Hong Kong, regarding the use of the Sultan’s North Borneo property. The agreement was worded in the Malay language and written in Arabic. Contending translations interpreted the word “padjak”, as used in the agreement, differently. Depending on whose translation was used, the document meant “lease”, “grant”, or “cession”. The Spanish version used “contrato de arrendamiento” (contract of lease). The British North Borneo Provisional Association, Limited, however, took the Agreement to mean “contract of cession” and, from there, acted accordingly. This was the starting point of the present-day Sabah controversy. On February 27, 1947, Francis B. Harrison, former U.S. governor-general to the Philippines and then adviser to the Philippine government on foreign affairs, wrote a letter to Vice-President and concurrent Secretary of Foreign Affairs Elpidio Quirino regarding an 1878 document — a purported photostatic copy of the document allegedly used by the British Government as bases to their “claim to all the lands tributary to the Sultanate of Sulu” (i.e., North Borneo), and apparently obtained from the British government by the U.S. State Department.

Page 2 of 24

Harrison requested Harold Conklin, assistant to Prof. H. Otley Beyer of the University of the Philippines, to translate the document. The salient observations and comments of Prof. Conklin were that: (1) the document was distinctly a lease, not a cession of sovereignty as claimed by the latter-day British officials; (2) the lease was permanent, on an annual rental of five thousand (Mexican) dollars – which had not been paid since 1939; and (3) none of the other datus who formed the Council of State (i.e., Ruma Bechara) had signed the document. Conklin held that the solo signature of Sultan Jamalul Alam was a “most significant omission” because “in Sulu the government is an oligarchy – vested in the Sultan and the datus, in the Ruma Bechara assembled”. Customary law would have required that any agreement of this nature should bear the collective signatures of the council members. He concluded: “We have thus no evidence that the members of the Ruma Bechara were present and consented to the signing by the Sultan of the lease of January 22, 1878, to Overbeck and Dent. This fact utterly impugns the validity of this transaction and raises serious doubts as to the whole matter because it is not in compliance with Moro law”. Harrison concluded his letter to Quirino:

“In reviewing the subject of the claims of the Sultanate of Sulu to their ancient patrimony in North Borneo, one must come to the conclusion that the action of the British Government in announcing on the sixteenth of July, just twelve days after the inauguration of the Republic of the Philippines, a step taken by the British Government unilaterally, and without any special notice to the Sultanate of Sulu, nor consideration of their legal rights, was an act of political aggression which should promptly be repudiated by the Government of the Republic of the Philippines.”

1.2 Lord Earl Granville’s correspondence with Mr. Morier (Jan. 7, 1882) Source: Official Gazette of the Republic of the Philippines, “Earl Granville to Mr. Morier”. http://www.gov.ph/1882/01/07/philippine-claim-to-north-borneo-vol-i-earl-granville-to-mr-morier/

In November 1881, the British North Borneo Provisional Association, Limited sought and obtained a Royal Charter from the British Crown. Responding to protests from the Spanish and Dutch governments that the grant of the Royal Charter created a trading company with sovereign rights over North Borneo, Lord Earl Granville, then Secretary of State for Foreign Affairs, in a correspondence dated January 7, 1882 to the British Minister at Madrid, clarified:

“there was no question of the annexation of North Borneo by Great Britain, or of the establishment of a British Protectorate there. This was pointed out to the Netherlands Government in Lord Salisbury’s dispatch to Mr. Stuart, of the 24th November, 1879, and the character of Mr. Dent’s undertaking and of the Charter then under consideration was fully explained.

Page 3 of 24

The principal legal effect of the Charter applied for by Mr. Dent would be to confer the ordinary incidents of incorporation on his Association. It was open to him to obtain incorporation by registration under the Companies Acts, and to carry out his scheme independently of Her Majesty’s Government; but the incorporation of the Company by Royal Charter would be the formal recognition of the title of Mr. Dent and his Association to the territories granted to him by the Sultans, and in return for such recognition the Company offered to submit to the control of Her Majesty’s Government in the exercise of the powers derived from the Sultans, especially with regard to the treatment of the natives, and in the settlement of any questions arising between the Company and foreign Powers.”

x x x x x x x x

After very careful consideration of all the circumstances of the case Her Majesty’s Government decided that the Charter should be granted, and you will perceive on examination of its provisions that its effect is to restrict and curtail the powers of the Company and not to create or enlarge them.” (Italics supplied)

Lord Granville clearly differentiated the Charter of the British North Borneo Company from those of the East India Company, the Hudson’s Bay Company, the New Zealand Company, and other Associations of similar character:

“It is important to bear in mind that no such control would have been reserved to the Crown had the Company taken incorporation in the usual manner by registration under the Companies Act, and elected to follow their own course independently of Government support.

The British Charter therefore differs essentially from the previous Charters granted by the Crown to the East India Company, the Hudson’s Bay Company, he New Zealand Company, and other Associations of that character, in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the Company, nor does it purport to grant to the Company any powers of government thereover; it merely confers upon the persons associated the status and incidents of a body corporate, and recognize the grants of territory and the powers of government made and delegated by the Sultans in whom the sovereignty remains vested. It differs also from previous Charters, in that it prohibits instead of granting a general monopoly of trade.” (Italics supplied)

Prime Minister William Ewart Gladstone, speaking in the House of Commons,

acknowledged that the “remarkable powers” obtained by the British North Borneo Company involved the “essence of sovereignty” but they were “covered by the Suzereignty of the Native Chief.”

Page 4 of 24

1.3 The British North Borneo Protectorate Agreement (May 12, 1888) Source: Official Gazette of the Republic of the Philippines, “British North Borneo, 1888, Protectorate Agreement”.http://www.gov.ph/1888/05/12/philippine-claim-to-north-borneo-vol-i-british-north-borneo-1888-protectorate-agreement/

Lord Granville’s term as Secretary of State for Foreign Affairs ended in 1885. Three years later, in 1888, to protect its maritime trading activities against rival European powers, the British North Borneo Company (successor to the British North Borneo Provisional Association, Limited) sought and obtained the Crown’s protection. The Preamble of the Protectorate Agreement claimed that: (1) all rights of sovereignty over the said territories are vested in the British North Borneo Company; (2) the Company was authorized and empowered to assume the government of the said territories, subject to the conditions of the Company’s Charter; and (3) said territories are now governed and administered by the Company as an independent state, hereinafter referred to as the State of North Borneo. In effect, the premises of the Protectorate Agreement contradicted Lord Granville’s 1882 clarification that “the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the Company, nor does it purport to grant to the Company any powers of government.”

It must also be pointed out that the meaning of the term “Their Majesties’ Government” in the North Borneo Agreement of 1878 was totally different from Article VI (Alienation of Territory) in the Protectorate Agreement. In the 1878 document, the term “Their Majesties’ Government” was in the third-person royal plural – meaning the Sulu Sultan’s. How could it happen that, in just ten years, the Company could make such an egregious mistake? For comparison, the relevant text portions are shown below:

o In the North Borneo Agreement of 1878:

“The above-mentioned territories are from today truly leased to Mr. Gustavus Baron de Overbeck and to Alfred Dent, Esquire, as already said, together with their heirs, their associates (company), and their successors or assigns, for as long as they choose or desire to use them; but the rights and powers hereby leased shall not be transferred to another nation, or a company of other nationality, without the consent of Their Majesties’ Government.” (Italics supplied)

o In Article VI (Alienation of Territory) of the Protectorate Agreement:

“No cession or other alienation of any part of the territory of the State of North Borneo shall be made by its Government to any foreign state, or the subjects or citizens thereof, without the consent of Her Majesty’s Government, but this restriction shall not apply to ordinary grants or leases of lands or houses to private individuals for purposes of residence, agriculture, commerce, or other business.” (Italics supplied)

Page 5 of 24

1.4 North Borneo Cession Order in Council (July 15, 1946) Source: Official Gazette of the Republic of the Philippines, “The North Borneo Cession Order in Council 1946”. http://www.gov.ph/1946/07/10/philippine-claim-to-north-borneo-vol-i-the-north-borneo-cession-order-in-council-1946/;

Using as legal bases the 1881 Royal Charter granted by the Crown to the British

North Borneo Company and the 1888 Protectorate Agreement between the Company and the British government, the opening preamble of the Cession Order made mention of an earlier Agreement (June 26, 1946) between the Secretary of State for the Colonies and the Company which stated:

“the Company (amongst other things) have transferred and ceded all the said rights, powers and interests to the Crown with effect from the fifteenth day of July, 1946, to the intent that the Crown should, as from that day have full sovereign rights over, and title to, the territory of the State of North Borneo and that the said territory should thereupon become part of His Majesty’s dominions”. (Italics supplied)

From the foregoing premises, Paragraph 2 of the Cession Order promulgated:

“As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo.” (Italics supplied)

After the Cession Order of 1946, the Sultanate of Sulu was overtaken by events

in 1962-1963 and became unable to press its claim over its territories in North Borneo. 1.5 The Cobbold Commission of Enquiry, North Borneo & Sarawak, 1962 Source: Cobbold Commission Report 1962. http://www.scribd.com/doc/100902891/Cobbold-Commission-Report-1962

The idea of a political association of Malaya, Singapore, and the three territories of Borneo (i.e., North Borneo; Brunei; and Sarawak) began to be seriously discussed after a speech made in May 1961 by Tunku Abdul Rahman, Prime Minister of the Federation of Malaya.

To weigh the proposal’s advantages and disadvantages, the British Government

formed a Commission, with Lord Cobbold as Chairman, two members nominated by the British Government, and two members by the Malayan Government. The Commission’s appointment had the following terms of reference:

“Having regard to the expressed agreement of the Governments of the United Kingdom and the Federation of Malaya that the inclusion of North Borneo and Sarawak (together with other territories) in the proposed Federation of

Page 6 of 24

Malaysia is a desirable aim in the interests of the peoples of the territories concerned— (a) to ascertain the views of the peoples of North Borneo and Sarawak on

this question; and (b) in the light of their assessment of these views, to make

recommendations.” The Enquiry was conducted from February 19 until April 18, 1962. In its official report, the Cobbold Commission admitted the following limitations regarding the conduct of the enquiry: (Note: Photo images of excerpts taken from the Cobbold Commission Report)

o Insufficient time (2 weeks) for North Borneo population to study Malaysia proposals

o Large sections of population did not understand the Malaysia proposals

Page 7 of 24

o Indigenous people (67% of total population) trusted the British government

This finding suggests that the political receptivity of two-thirds of the North Borneo population may be described as “malleable”, because the natives placed implicit faith on what the British Government said would be in the people of North Borneo’s true interests.

o Inconclusive survey results: 33% favorable; 33% conditional; 33% divided

Page 8 of 24

Taken altogether, the above limitations in the conduct of the enquiry raise serious questions on how the British Government could credibly use the Commission’s self-admission of rough estimates on inconclusive survey results as a firm basis to report to the Crown that the people of North Borneo had freely and intelligently exercised their right to self-determination and had expressed support for the proposed Federation of Malaysia.

1.6 Philippine claim to North Borneo overtaken by establishment of Malaysia Source: United Nations Treaty Series No. 8029.

http://treaties.un.org/doc/Publication/UNTS/Volume%20550/volume-550-I-8029-English.pdf

The Cobbold Report was formally submitted on June 21, 1962. A year later, even

as the Philippine claim on North Borneo was still pending, the British and Malayan governments agreed to establish Malaysia on August 31, 1963. Then President Diosdado Macapagal proposed a Conference of Ministers from the Philippines, Indonesia, and the Federation of Malaya to work out a peaceful mode of settling the North Borneo issue. The conference was held in Manila on June 7-11, 1963, producing as its output a document, known as the “Manila Accord”. Article 12 of the Manila Accord reads: (Box highlights provided in both documents)

Surprisingly, just five days later (Aug. 5, 1963), the Joint Statement by the Philippines, the Federation of Malaya, and Indonesia changed the tenor of the original premise contained in Article 12 of the Manila Accord:

Page 9 of 24

The Manila Accord made it clear that the position of the Philippines on the inclusion of North Borneo in the Federation of Malaysia was subject to the final outcome of the Philippine claim to North Borneo. However, the Joint Statement stated that the three Heads of Government would take cognizance of the position of the Philippine claim to Sabah (North Borneo) after the establishment of the Federation of Malaysia. How this radical change in meaning and intent of the text of the Joint Statement could have escaped the notice of the signatories — an alteration which negated the prior Philippine reservation expressed in the Manila Accord — remains a mystery. 2. The advent and evolution of armed conflict in Mindanao 2.1 Sen. Benigno Aquino Jr.’s speech on the “Corregidor Affair” (March 28, 1968) Source: Official Gazette of the Republic of the Philippines, “Jabidah! Special Forces of Evil?” http://www.gov.ph/1968/03/28/jabidah-special-forces-of-evil-by-senator-benigno-s-aquino-jr The peaceful tenor of the Manila Accord was disrupted in 1967 when a supposed covert plan (Operation Merdeka) by the Philippine government to reclaim Sabah was compromised when a number of Muslim recruits complained about not receiving their salary and wrote a letter appealing for payment. The complaining recruits were sent home, but not all could be accounted for later. Media carried the news of the missing recruits as the “Jabidah massacre”. On 28 March 1968, then Sen. Benigno Aquino, Jr. delivered a speech at the Legislative Building about the so-called “Jabidah massacre”. Interestingly, he only referred to the incident as the “Corregidor Affair”. In his speech, he expressed personal doubt that a “massacre” of the Muslim recruits had taken place. Of the 60 recruits who were supposedly killed, 29 were subsequently located and found to be alive, leaving only 31 who had resigned and were still unaccounted for.

Page 10 of 24

Unlike news articles which alleged that the Jabidah recruits were intended to foment unrest in North Borneo (Sabah) as part of a plan to reclaim that territory, Sen. Aquino also did not categorically refer to any such plot, nor even mention a specific location, except only to vaguely say that “Major Martelino, as a ploy to get the Tausug elders behind him, promised to distribute land to the faithful once his special secret mission had been accomplished and he had proclaimed himself Sultan of the “liberated territory”. (Italics supplied) Neither did his speech allege the occurrence of any “massacre”: “I am afraid that many of us had been too quick to anger, too quick to deplore and denounce. For the truth, as I found it in Sulu, is: the probability of a mass massacre is dim. I could make big political capital out of all of this. I could pillory, nail on the public cross and damn President Marcos and the men who served under him in this operation. I could rouse the people against them, all of them. But, Mr. President, I say: Let us pin blame only where the blame is. And, by my findings, a wanton massacre is not among the things that we must hang on Mr. Marcos’ conscience and Mr. Marcos’ soul.” (Italics supplied) If Sen. Aquino believed that there was no hard evidence of a massacre, then what was the speech for? Nonetheless, the closing part of his speech deserves attention because of its serious implication: “And I also charge President Marcos with careless recruitment in the Tawi-Tawi islands group, a carelessness that opened us to infiltration by counter-insurgency forces of a neighboring country. (Italics supplied)

2.2 Start of armed conflict in Mindanao – Counter-insurgency by a neighboring country?

Ever since the 1968 speech, a number of books have been published on the aftermath of the so-called Jabidah massacre / Corregidor affair — narratives which appear to tie in with then Sen. Aquino Jr.’s closing statement and suggest a view or possible explanation to how armed conflict began in Mindanao:

1. Moshe Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines, Southern Thailand, and Western Burma/Myanmar. (Lexington Books, U.S., 2002), p. 267.

“In 1972, the MNLF, with Nur Misuari at its head, took the lead in the Muslim revolutionary movement against government. The movement had begun in 1969 when ninety volunteers left for military training in the Malay Peninsula. A committee of seven was elected, and Nur Misuari was chosen as chairman. … At the beginning of 1969, he met Dato Udtog Matalam, and made contact with two other prominent Muslim politicians, Salipada Pendatun from Cotabato, and Rashid Lucman from Lanao. They were of help to him in the organization of a training camp on the Island of Pangkor on the west coast of Malaya, in which he was also a participant.” (Italics supplied)

Page 11 of 24

2. Lino Miani, The Sulu Arms Market: National Responses to a Regional Problem.

(Institute of Southeast Asian Studies, Singapore, 2011), pp. 66-68. “Fearing a new “Confrontation” *, Malaysia began its own covert training programme in 1969. Following a promise of support from Malaysian Prime Minister Tungku Abdul Rahman, the datu sent ninety Moros to Pangkor Island in Malaysia where they received training and weapons for guerilla warfare against the Philippines. This was the first of sixteen classes to train at Pangkor while dozens more trained at similar camps in Sabah. That state’s ethnically Tausug Chief Minister, Tun Mustafa, was instrumental in arranging these courses and later became the broker for the Moro’s first grey market supply line in a century. [* Note: The 1963-66 conflict stemmed from Indonesia’s opposition to the creation of Malaysia.] On Tun Mustafa’s watch, Moro smuggling operations achieved an unprecedented scale. Using a fleet of a hundred speedboats augmented by Malaysian navy vessels, they imported significant amounts of modern individual and crew-served weapons, ammunition, grenades, and demolitions. A member of the first class trained at Pangkor, Nur Misuari, returned to Mindanao in 1970 amid rising violence between Muslims and non-Muslims. Together with his fellow trainees Hashim Salamat and Abdul Khayer Alonto, Misuari created the MNLF while still training at Pangkor and later directed it in guerilla campaigns against Filipino forces.” (Italics supplied)

3. “Chapter 11: Separatist Insurgency in the southern Philippines”, by Paul A. Rodell, in A Handbook of Terrorism and Insurgency in Southeast Asia, edited by Andrew T. H. Tan. (Edward Elgar Publishing Limited, UK, 2007), p. 229. “Events moved rapidly after Jabidah: only a few months later Governor Datu Udtog Matalam formed the Muslim Independence Movement while Congressman Rashid Lucman sent a batch of 92 young Muslim men to Malaysia for training with the Royal Malaysian Special Forces. Upon returning, the new ethnic fighters built training camps in Sulu and Mindanao and by 1971 they had trained an estimated 30 000 others in weapons and guerilla tactics. In response to this increased Islamic militancy, Christian gangs called Ilagas, or rats, perpetrated attacks on Muslim civilians and appeared to enjoy the support of Christian politicians. The Armed Forces of the Philippines (AFP) seemed unable to control the violence and President Marcos used the escalating conflict as one of his justifications when he declared Martial Law in September 1972.” (Italics supplied)

Page 12 of 24

And so, the Sabah issue remains an unresolved and vexatious problem. From the Marcos administration up to the present, the Sulu Sultanate’s historical and rightful claim over North Borneo has been relegated to the “back burner” for the sake of preserving regional peace and harmonious diplomatic relations with Malaysia. But as the above books have so clearly reported, Malaysia is a conflicted party at interest regarding Sabah and therefore cannot reasonably be regarded as a “neutral broker” in the Mindanao peace negotiations. It is puzzling how and why the Philippine government is said by media to have requested Malaysia to serve as third-party facilitator since 2001 in the Mindanao peace process. 3. Competing U.S. - China interests in the South China Sea 3.1 The critical sea lanes of communications (SLOC) in the South China Sea

https://jkbrent.wordpress.com/2014/12/18/sri-lanka-chinas-pearl-harbor/

Page 13 of 24

The engine of China’s economic growth depends upon the uninterrupted flow of imported Middle East crude oil. As the above map shows, over 80% of China’s crude oil imports passes through the Strait of Malacca, a maritime choke point, before it proceeds north through the South China Sea and finally reach the East Sea. Security and assured access to energy sources is a prime strategic objective which China seeks to protect. China’s “Nine-Dash Line” claiming almost the entire South China Sea, its massive land reclamation projects, and aggressive pace of construction in the Spratly Islands are all meant to push back U.S. containment efforts. 3.2 U.S. “containment policy” & China’s behavior in the South China Sea Source: At the Door of All the East: The Philippines in United States Military Strategy, (Focus on the Global South, November 2007). http://focusweb.org/pdf/at-the-door-of-all-the-east.pdf As the only remaining super-power after World War II and especially after the collapse of the former Soviet Union, the United States wants to maintain its global power status and prevent the rise of any competitor that may challenge it. However, due to Deng Xiaoping’s economic reforms (since 1978), China has grown tremendously, both in economic terms and military capability. A study (2007) made by a Bangkok-based think tank, Focus on the Global South, presents an interpretation of U.S. strategic interest in the Philippines: (Box highlights

provided)

Page 14 of 24

3.3 The strategic importance of U.S. bases in Okinawa The United States has 2 regional security concerns in the South / East China Sea: (1) China’s threat to Taiwan; and (2) North Korea. The placement of U.S. bases in Okinawa is strategic because in matters of force deployment, sailing distance and response time are critical – the “tyranny of distance”. The map below shows why.

Page 15 of 24

Source: Asia – 2015 Index of U.S. Military Strength

http://index.heritage.org/militarystrength/chapter/op-environment/asia/

3.4 The United States-Japan Roadmap for Realignment Implementation (May 1, 2006) Source: United States-Japan Roadmap for Realignment Implementation, (Ministry of Foreign Affairs of Japan, May 1, 2006). http://www.mofa.go.jp/region/n-america/us/security/scc/doc0605.html

In 2006, the United States and Japan signed an agreement that would realign U.S. troop presence in Japan. The plan (original timetable: 2010-2014) entailed the relocation of a U.S. airbase at Futenma to another site within Okinawa, the relocation of

Page 16 of 24

8,000 U.S. Marines to Guam, and the return of valuable land occupied by the U.S. bases to Japan. Okinawans strongly opposed the Futenma relocation because of the risk of aircraft accident, noise pollution, increased load on local utilities, misbehaving U.S. military personnel, and the destruction of marine ecosystems due land reclamation and construction of aircraft runways at the relocation site. A recent (April 2013) update on the status of the Realignment Plan reported that the Futenma relocation would take up to FY 2022 or later to be completed. Clearly, the U.S. cannot afford to wait that long. Guam is too far to enable rapid response to possible flashpoints in the South / East China Sea. Hence, the nearest alternative forward deployment sites instead of Okinawa would be in Palawan, Sulu Archipelago, and certain areas in mainland Mindanao.

Source: Consolidation Plan for Facilities and Areas in Okinawa (April 2013). www.defense.gov/pubs/Okinawa%20Consolidation%20Plan.pdf

3.5 The importance of Mindanao to the U.S. “pivot to Asia” strategy and the

containment of China Given expected delay in completion date (FY 2022 or later) of the Futenma relocation and the continuing resistance by the Okinawa population (despite Tokyo’s cooperative stance to the U.S.) against U.S. bases in their territory, the map below

Page 17 of 24

shows, at a glance, why Mindanao is so vital to the U.S. “pivot to Asia” strategy in implementing its containment policy against China. (Comments by this author)

Source: “The Challenge of Persistent Presence in the Pacific: An Interview with Lt. Gen. Robling” (Second Line of Defense ©2013 ICSA, LLC, Arlington, VA 22206) http://www.sldinfo.com/the-challenge-of-persistent-presence-in-the-pacific-an-interview-with-lt-general-robling/

3.6 Convergence of U.S. - MILF agenda in Mindanao Since its break-up with the MNLF in the late 70s, the MILF sought the creation of an independent Muslim homeland called “Bangsamoro”. But it could not gain any significant headway in attaining its vision. Three decades later, an opportunity came up. In January 2003, U.S. interest in Mindanao as a force deployment jump-off point to the South China Sea and the MILF’s dream of a “Bangsamoro” converged when then MILF Chairman Hashim Salamat wrote to Pres. George Bush and sought U.S. assistance in resolving the Bangsamoro “right to seek decolonization”. The letter (shown below) was the key that opened the door for U.S. involvement in Mindanao. (Box highlights provided)

Guam is too far from potential flashpoints

U.S. cannot afford to wait until 2022

U.S. must get access to Mindanao as alternative forward deployment location

Okinawa

Page 18 of 24

Page 19 of 24

Page 20 of 24

3.7 The United States Institute of Peace (USIP) – Philippine Facilitation Project Source: Toward Peace in the Southern Philippines: A Summary and Assessment of the USIP Philippine Facilitation Project, 2003-2007. (United States Institute of Peace), Feb 2008. http://www.usip.org/files/resources/sr202.pdf

U.S. response to the MILF invitation was swift. Seeing the opportunity to advance its strategic agenda in the South China Sea, the U.S. State Department engaged the services of the United States Institute of Peace (USIP). With this mandate, the USIP implemented the Philippine Facilitation Project (2003-2007).

“The State Department felt that the Institute’s status as a quasi-governmental, “track one-and-a-half” player would allow it to engage the parties more broadly than an official government entity could. To accomplish its mandate, USIP launched the Philippine Facilitation Project (PFP).” – Summary, page 1

A $30 Million budget was allocated by U.S. Congress for the USIP project, of

which US$27 Million went to fund USAID’s economic development and conflict resolution (aka “endearment”) activities in Mindanao. (See USIP’s Engagement, p. 4) 4. Recent developments and potential impact on Mindanao peace outlook 4.1 News and events (Oct 2014 – April 2015) Last October and barely three months ago, a number of developments have come about, which may give our country reason to be concerned because of their possible implications on the Mindanao peace outlook:

October 16, 2014 - Malaysia was elected as a non-permanent member to the UN Security Council (2015-16), garnering 187 out of 192 votes cast in the General Assembly. [“General Assembly elects Angola, Malaysia, Venezuela, New Zealand, Spain as

Non-Permanent Members of Security Council for 2015-2016” (16 Oct 2014). http://www.un.org/press/en/2014/ga11570.doc.htm]

Page 21 of 24

March 26, 2015 – News report that the MILF plans to bring its case before the UN if the BBL is watered down. [“If BBL Gets Watered Down, We’re Going to the UN –

MILF” (Security Matters, March 26, 2015). http://securitymatters.com.ph/if-bbl-gets-watered-

down-were-going-to-the-un-milf-12688/]

April 19, 2015 – An article from a Malaysian newspaper that Malaysia is setting up offshore military bases in the Sulu Sea to prepare for an influx of displaced Filipinos if the BBL fails to pass by June. [“Malaysia preparing for influx of refugees if

Southern Philippines peace talks break down”, by Nicholas Cheng. (The Star Online, March 28, 2015). http://www.thestar.com.my/News/Nation/2015/03/28/Hisham-influx-of-refugees-war-

southern-Philippines/ [Note the subliminal June countdown timetable]

April 21, 2015 – An Organization of Islamic Cooperation (OIC) executive warned that failure to see the peace process through with the MILF could “open the door to extremism”. [“OIC exec backs BBL, says passage to end extremism”, by Marvin Sy. (The

Philippine Star, April 21, 2015).http://www.philstar.com/headlines/2015/04/21/1446183/oic-exec-backs-bbl-says-passage-end-extremism

4.2 Chapter VII of the UN Charter MILF’s threat to bring their case to the UN if the BBL is not passed or if, in their view, it has been watered down to what they consider “unacceptable”, fits into Chapter VII of the UN Charter, which defines the conditions and the forms of action the UN Security Council may consider with respect to (1) threats to the peace, (2) breaches of the peace, and (3) acts of aggression. [http://www.un.org/en/documents/charter/chapter7.shtml] Article 39 stipulates that the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures what shall be taken in accordance to Articles 41 and 42, to maintain or restore international peace and security”. Article 41 deals with measures not involving the use of armed force. In the event that measures provided for in Article 41 are deemed inadequate or have proved to be inadequate, then Article 42 may consider other actions by air, sea, or land forces of Members of the United Nations. Plans for the application of armed force shall be made by the Security Council with the assistance a Military Staff Committee (Article 46) whose composition, per Article 47(2), are the “Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee’s responsibilities requires the participation of that Member in its work”. (Italics and underscoring supplied)

Page 22 of 24

4.3 The “responsibility to protect” Source: “Chapter 17 – The Responsibility to Protect”, by Spencer Zifcak, in International Law (Fourth Edition). Edited by Malcolm D. Evans. (Oxford University Press, Oxford, U. K., 2014), pp. 509-531. Spencer Zifcak is a Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.

The principle of “responsibility to protect” (R2P) ties in with enforcement measures under Chapter VII. It is the primary conceptual framework used when considering the dilemma of international action in defense of peoples at risk of mass atrocity crimes versus the principle of non-interference with State sovereignty, embodied in Article 2(4) of the Charter. Article 2(7) prohibits the UN to “intervene in matters which are essentially within the domestic jurisdiction of any state”, but it does not prejudice the application of enforcement measures under Article VII. Given the interconnectedness of national economies, overlapping claims on maritime territories, and enhanced digital connectivity and exchange of information, beyond the debate between intervention and non-interference, there is now the added problem of how to more realistically determine what circumstances constitute a “threat to international peace and security” versus “matters which are essentially within the domestic jurisdiction of any state”. Regarding how the UN Security Council applies the concept of “responsibility to protect”, Zifcak’s article (see Chapter 17, pp. 530-531) provides insight on the possible significance of Malaysia’s election as a non-permanent member in the Security Council, and how the Council’s past resolutions pertaining to other conflicts may bear upon the future outlook of peace in Mindanao:

“However, the sole arbiter of whether there exists a threat to international peace and security remains the Security Council itself. And in recent years it has become apparent that the Council is now more willing than it has been previously to determine the existence of such a threat even where conflict or strife is taking place entirely within the boundaries of one State. Generally speaking the Council has made such a determination only where, for example, the ‘international dimension’ is constituted by some cross-boundary ramification of the primary conflict such as massive consequential refugee flows. In the past two decades or so, however, it has seemed prepared to go one step further where a humanitarian disaster is in prospect and declare a threat even where cross-boundary consequences have not plainly been in evidence. The Council’s resolutions in relation to Somalia, Rwanda, Bosnia-Herzegovina and, more recently, Libya and Côte D’Ivoire provide relevant examples. In the absence of a power of judicial review of Security Council decision-making, the Council will continue to have very considerable flexibility when determining whether threats to international peace and security are

Page 23 of 24

present. And, further, it does not need to give reasons for its decisions.” (Italics and underscoring supplied)

The recent election of Malaysia as a non-permanent member of the Security Council for 2015-2016, the MILF threat to involve the United Nations if its expectations on the BBL are not met, Malaysia’s setting up offshore military bases in the Sulu Sea to stem their anticipated tide of Filipino refugees, and the OIC veiled warning about extremist elements are like chess pieces being carefully positioned on the board. Taken together, the collective trajectory of these items seem to point towards laying the “foundation” for evidence that may justify external intervention in the Mindanao conflict, using the principle of “responsibility to protect” and to preempt / neutralize a “threat to international peace and security” in the Southeast Asian region. 4.4 The interconnected “dots” In summary, when the “dots” are connected and the separate but converging agenda of both state and non-state actors presently operating in Mindanao are weighed together, the probable agenda of parties and emerging scenario seem to be as follows:

U.S. – Use partnership with the MILF to gain access to alternative (vice Okinawa) forward deployment sites in Mindanao, Palawan, & Sulu Archipelago. This move supports the U.S. “pivot to Asia” strategy & “containment” policy on China

MILF – Use multinational (i.e., US; Japan; Australia; UK; EU; OIC) pressure on RP government to pass the BBL & realize the MILF “Bangsamoro” dream

Malaysia – Inasmuch as the RP government still has not categorically renounced its claim on Sabah, prevent the revival of the Sabah claim. Continuing conflict in Mindanao will distract RP attention and keep government off-balanced.

Japan – Reacquire valuable land areas in Okinawa from relocated U.S. bases. Push the relocation of U.S. bases to an alternative location (e.g., Mindanao) close to potential flash points in the South / East China Sea. So strong is the resistance of Okinawa residents and their desire to be rid of U.S. bases such that in the 2006 Roadmap, Japan agreed to shoulder 60% of the relocation cost.

“Of the estimated $10.27 billion cost of the facilities and infrastructure development costs for the III MEF relocation to Guam, Japan will provide $6.09 billion (in U.S. Fiscal Year 2008 dollars), including $2.8 billion in direct cash contributions, to develop facilities and infrastructure on Guam to enable the III MEF relocation, recognizing the strong desire of Okinawa residents that such force relocation be realized rapidly. The United States will fund the remainder of the facilities and infrastructure development costs for the relocation to Guam-estimated in U.S. Fiscal Year 2008

Page 24 of 24

dollars at $3.18 billion in fiscal spending plus approximately $1 billion for a road.” http://www.mofa.go.jp/region/n-america/us/security/scc/doc0605.html

U.S. allies – Potential economic / business opportunities in Mindanao after the establishment of the Bangsamoro political entity and creeping expansion of initial core territory with the “opt-in” provision contained in the proposed BBL.

The Kosovo experience is a possible template that may be used in Mindanao:

o Privatization of Kosovo’s key industries - Upon entry of the NATO peacekeeping forces (KFOR) in Kosovo, the United Nations Interim Administration Mission in Kosovo (UNMIK) was created to provide interim administration for Kosovo. The Kosovo Trust Agency (KTA) was created in June 2002 to administer publicly-owned and socially-owned enterprises (POE/SOE’s). As a full juridical personality, it had the capability to enter into contracts, acquire, hold and dispose of property. The KTA was replaced by the Privatization Agency of Kosovo (PAK).

o Former U.S. diplomats and military officials now lobbyists / investors in

Kosovo - With the privatization of Kosovo’s mining, energy, telecommunications industries, and infrastructure projects came former U.S. senior diplomats and retired military generals, now turned lobbyists / investor-bidders. The New York Times mentions former State Dept. Sec. Madeleine Albright, and retired U.S. General Wesley Clark and former supreme allied commander of NATO forces in Europe who ran the Kosovo bombing campaign as among those vying for lucrative government contracts.

o Massive exodus of Kosovo refugees 16 years after the Kosovo War (Feb

1998-June 1999) - The Los Angeles Times reports of a massive exodus of Kosovo refugees to European Union countries. With 35% of Kosovo’s adults unemployed, 60% jobless among young people, and nearly 30% of the nation’s 1.8 million people living in poverty according to the United Nations Development Program, it is not hard to understand why.