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PROVINCE OF NORTH COTABATO v. GRP PEACE PANEL (Pamatmat) October 14, 2008 | J. Carpio-Morales | Sources of International Law: Treaties

| J. Carpio-Morales | Sources of International Law: Treaties Petitioner: Province of North Cotabato, City Government

Petitioner: Province of North Cotabato, City Government of Zamboanga, City of Iligan, et al. Respondents: Government of the Republic of the Philippines Peace Panel


After years of on-going dispute and peace negotiations between the GRP and the MILF, in August of 2008, the two parties were finally scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD). However, the signing did not push thru due to numerous petitioners coming forward with qualms about the validity of the MOA-AD. Among other things, the petitioners argue that it violated the law and the Constitution. In relation to PIL, the main issues are W/N the GRP is bound to grant the Bangsamoro Juridical Entity the status of an almost independent/associated state and W/N the MOA-AD was valid and binding as an international agreement. As regards the first issue, based on several sources of IL such as the ICESCR and the ICCPR, all peoples have the right of self-determination, however, just as in the case of Canada with regard to Quebec, it is said that self- determination can either be internal and external, and when it comes to indigenous peoples, those situated within states do not have a general right to independence or secession from those states under IL, but they only have rights amounting to the right to internal self-determination. Furthermore, the UN DRIP also recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government. Assuming that the UN DRIP, like the UDHR, must be regarded as embodying customary international law, the obligations enumerated therein do not strictly require the PH to grant the Bangsamoro people, through the BJE, the particular rights and powers provided for in the MOA-AD. It does not obligate States to grant indigenous peoples the near-independent status of an associated state. As regards the second issue, several sources of IL point to the conclusion that the MOA-AD would not have been recognized as binding as an international agreement or treaty. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to

sources of international law may be referred to, weight nor are they all binding on the Philippine



On August 5, 2008, the Government to sign a Memorandum of Agreeme AD) aspect of the GRP-MILF Tripoli Agreement 2001) in Kuala Lumpur, M upon motion of the present petitioner Court issued a TRO enjoining the GRP


Before the MOA-AD, beginning in 19 prior agreements between the GRP an

In July 1997, the parties signed Hostilities.

In 1998, they signed the General


According to the SolGen, the MOA- parties to pursue peace negotiations negotiate with sincerity in the resol conflict, and refrain from the use advantage while the negotiations are o


When PGMA assumed office, the (brought about by the war during Est government sought to resume the Government of Malaysia, the MILF ret GRP.


The parties met in KL on March 24, 2 the Malaysian government. The pa General Framework for the Resum thereafter suspended all its military act


Formal peace talks took place in Trip The Tripoli Agreement 2001 came principles and agenda on the:

Security aspect;

Rehabilitation aspect; and

Ancestral Domain aspect (The p meeting)

9. In 2005, several exploratory talks were held between the parties in KL, eventually leading to the draft MOA-AD in its final form.


1. Do the contents of the MOA-AD violate the Constitution and the laws? -- YES

2. Under international law, is the GRP bound to grant the BJE the status of an almost-independent or associated state? -- NO

3. Was the MOA-AD valid and binding as an international agreement? -- NO


1. YES. The MOA-AD is inconsistent with the Constitution and laws as presently worded.

The IL concept of ASSOCIATION must be referred to as the provisions of the MOA indicate, among other things, that the parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.

An association is formed when two states of unequal power voluntarily establish durable links. One state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. o In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence.

Many provisions are consistent with the international legal concept of association, specifically the following:


BJE's capacity to enter into economic and trade relations with foreign countries


the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies; and


the continuing responsibility of the Central Government over external defense


the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the

o It implies powers tha the Constitution to also implies the rec state on its own.

The MOA-AD is also contr provisions and laws:


Article X, Sec. 20




would not







into any eco




aggression a our constitut has that pow


Article II, Sec. 22






of indigenou

framework An associativ act of placing






to national u


Organic Act of the ARM


Rather than Bangsamoro Mindanao, c people and T








delineation a



NO. Under International Law, whi determination is widely recognize internal and external self-determina

Court had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention' and is considered as GAPIL.”

o The ICCPR and ICESCR state that “all peoples, by virtue

of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development."

- The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination.


re cla

o When it comes to those situated wit

right to independe


amounting to the ri


- On




Peoples (U


the right


autonomy o

- Assuming

Internal self-determination a




people's pursuit of its political,


economic, social and cultural

therein do



development within the framework of an existing state.

External self-determination the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-

instrument rights and AD. Even t DRIP are g in its applic

- While upho to autono States to g independe

determination by that people.

- Even if the

- The exceptional nature of the right of secession

the law of t

is discussed in the Report of the International


of the

Committee of Jurists on the Legal Aspects of

uphold the

the Aaland Islands Question



In the absence of express provisions in international treaties, the right of disposing of national territory is


3. The MOA-AD was not considered a


representatives of States and international organizations.

not consid implications

- The Lomé Agreement, a peace agreement between the Government of Sierra Leone and a rebel group, was considered to only be able to create binding obligations and rights between the parties in municipal law, not international law, as a treaty normally would.


The MOA-AD would declaration on the international commu draft the same with thereby to the inte to any State, but

- An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle

- The Lomé Agreement created neither rights nor


States and internati or another, in the ne MOA-AD, they partic case of Malaysia, as

means of enforcement.

obligations capable of being regulated by international law.

The sovereign peopl portion of its own t peace, for it can ch wants, so long as what, in IL, is know


In relation to the argument that the MOA-AD amounts to a

however, may not pr

unilateral declaration of the Philippines, binding under IL and resulting in amending the Constitution regardless of the true will of the people, international jurisprudence shows that it isn’t necessarily the case.

- According to Australia v. France, an ICJ decision also known as the Nuclear Tests Case, when it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State then being legally required to follow a course of conduct consistent with the declaration.

- Public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present:

the statements were clearly addressed to the international community

the state intended to be bound to that


The respondents' motion to dismiss is DENIED are GIVEN DUE COURSE The Memorandum of Agreement on the Ances Tripoli Agreement on Peace of 2001 is declared