Tuesday, 20 September 2011 13:58
Before I proceed with my academic exposition, let me first lay its historical rationale to avoid any speculation or suspicion that I am doing this for vested interest or just to attract attention. Personal gains or other similar dividends are not the principal inspirational or motivational forces that I as a free lance writer pursue in the exercise of my right to express my views and opinions. I stake everything in pursuit of truth, justice, and freedom. In this respect, let me stress in pure earnestness that the only reason for me to write this series of articles on what I consider to be grave scandal committed against the Sultanates of Maguindanao and Sulu by Spain and the United States, is to be able to provide a factual and useful historical roadmap for the Peace Panels, parties, and all the stakeholders leading to the achievement of genuine, permanent, and sustainable peace, prosperity, and development for the inhabitants of the “flood plains”, “ the currents,” “the iron trail,” “ lakes and pearls”, “garden of flowers,” and the proverbial “ land of promise.” Now let me proceed.
When the Spaniards came as a colonizing and invading foreign power, they based their justification fundamentally on the Law of Conquest. According to the Encyclopedia Britannica, “ conquest in international law, is the acquisition of territory through force, especially by a victorious state in a war at the expense of a defeated state. It is associated with the principle that sovereign states may resort to war at their discretion and that territorial gains achieved by military victory will be recognized as legally valid.”
Contrary however, to the common believe that Spain acquired sovereignty over the Sultanates of Sulu and Maguindanao, the written accounts of historians, American military and civilian top officials, and available treaty documents, generally attest to the opposite historical reality. The truth is, Spain never acquired sovereignty and territorial ownership of these two ancient Islamic monarchies by virtue of the law of conquest until the surrender and turn-over of Spanish sovereignty by the last Spanish Governor General, Diego de los Rios to Gen. Vicente Solis Alvarez, Commanding General of the Zamboanga Revolutionary Army following the capture of Fort Pilar, the biggest Spanish fortress in Mindanao on May18, 1899 effectively ending the more than three hundred years of Spanish Regime in the Philippine Islands.
Granting for the sake of argument, that Spain in truth and in fact, acquired de facto sovereignty over Mindanao and Sulu, the capture of the biggest Spanish fortress in Mindanao, Fort Pilar, and the surrender the last Spanish Governor General, Diego de lost Rios to Gen. Vicente Alvarez on May 18, 1899, by the operation of the Law of Conquest, at that very point in time, the statehood and independence of these two Sultanates were already fully recovered and restored. The surrender of the last Spanish Governor General extinguished the right of the Spain over all the territories in Mindanao and Sulu which were taken by force of arms for “conquest per se, doesn’t give the conqueror plenum dominium, but a temporary right of possession and government.”
Sneak Invasion of Sulu and Mindanao by the Americans
The long held conviction by military, diplomatic, legal, and political pundits and luminaries that the occupation of Mindanao and Sulu by the American forces starting May 19, 1899 when the two American infantry battalions landed in Jolo, Sulu for the rescue and relief of the Spanish troops was militarily justified, was grossly in contravention to the 1787 Constitution of the United States for it was without Congressional authority. Unlike in the case of Spain, the United States could no longer invoke the Law of Conquest to justify their military aggression against the Sultanates of Sulu and Mindanao because the “war of conquest” is already strictly prohibited under the US Fundamental Law unless “actually invaded.” To support this contention, let me quote the following specific Articles and Sections of the US Constitution which were violated or disregarded by the American forces when they occupied Mindanao and Sulu:
“ARTICLE 1, Section 8, (Clauses 10, 11, and 14): To define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations; to declare war, grant letters of Marque and reprisal, and make rules concerning captures on land and water; and to make rules for the government and regulation of the land and naval forces.
Section 10, ( Clause 3) : No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”
The military occupation of Mindanao and Sulu would have been legally valid if the US Constitution was not yet in effect on May 19, 1899. Because the war of conquest has already been strictly prohibited since the ratification of the US Constitution in 1788, such intrusion into the sovereign territories of the Sultanates of Sulu and Mindanao, is to my mind, a patent violation of the aforementioned constitutional provisions. This kind of military aggression also violated the Code and Law of War prepared by Francis Lieber, LL.D., originally promulgated as General Orders No. 100, Adjutant General’s Office, by President Abraham Lincoln on April 24, 1863 for the Government of Armies of the United States in the field and reprinted in Washington from the edition of the United States Government Printing Office in 1898 as the Laws of Armed Conflicts. The specific applicable Articles which I believe had been transgressed by the concerned military officials who invaded Mindanao and Sulu beginning May 19, 1898 are hereby cited:
“Article 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”
“Article 16. Military necessity does not admit of cruelty-that is, the infliction of suffering for the suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy, and in general, military necessity does not include any act of hostility which makes the peace necessarily difficult.”
Since the framers of the 1787 US Constitution had also explicitly and expressly incorporated in this basic law the authority of Congress to “ define and punish piracies and felonies committed on high seas, and offenses against the Law of Nations,” to my point of view the following provisions of the Law of Nations, Book I, had also been breached wittingly or unwittingly by the American forces when they occupied Mindanao and Sulu, quoted as follows:
“15. Liberty and Independence of Nations, and General Law. Since nations are free and independent of one another as men are by nature, the second general law of their society is that each Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature. The natural society of nations cannot continue unless the rights which belong to it by nature are respected. No nation is willing to give up its liberty; it will rather choose to break off all intercourse with those who attempt to encroach upon it.”
“18. Equality of Nations. Since men are by nature equal, and their individual rights and obligations the same, as coming equally from nature, Nations, which are composed of men and may be regarded as so many persons living together in a state of nature, are by nature equal and hold from nature the same obligations and the same rights. Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a giant; a small Republic is no less sovereign State than the most powerful Kingdom.”
Under the principle of equality, the Law of Nations mandates that all states irrespective of size and might should be treated with the same degree of respect and dignity. By virtue of the rights naturally conferred upon nations and their corresponding obligations to one another for their mutual welfare and security, they are supposed to be regarded as independent and free and should be left to the “peaceable enjoyment of liberty” which belongs to them by nature. (To be continued.)
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