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By the time these changes are put in place, the The stipulations on Phase II consisted of

MOA-AD itself would be counted among the prior specific agreements on the structure of the expanded
agreements from which there could be no autonomous region envisioned by the parties. To that
derogation. extent, they are similar to the provisions of the MOA-
AD. There is, however, a crucial difference between
What remains for discussion in the Comprehensive the two agreements. While the MOA-AD virtually
Compact would merely be the implementing details guarantees that the necessary changes to the legal
for these consensus points and, notably, framework will be put in place, the GRP-MNLF
the deadline for effecting the contemplated changes to final peace agreement states thus: Accordingly, these
the legal framework. provisions [on Phase II] shall be recommended by the
GRP to Congress for incorporation in the amendatory
Plainly, stipulation-paragraph 7 on or repealing law.
GOVERNANCE is inconsistent with the limits of
the Presidents authority to propose constitutional Concerns have been raised that the MOA-AD would
amendments, it being a virtual guarantee that the have given rise to a binding international law
Constitution and the laws of the Republic of the obligation on the part of the Philippines to change its
Philippines will certainly be adjusted to conform to all Constitution in conformity thereto, on the ground that
the consensus points found in the MOA-AD. Hence, it it may be considered either as a binding agreement
must be struck down as unconstitutional. under international law, or a unilateral declaration of
A comparison between the suspensive clause the Philippine government to the international
of the MOA-AD with a similar provision appearing in community that it would grant to the Bangsamoro
the 1996 final peace agreement between the MNLF people all the concessions therein stated. Neither
and the GRP is most instructive. ground finds sufficient support in international law,
however.
As a backdrop, the parties to the 1996
Agreement stipulated that it would be implemented in The MOA-AD, as earlier mentioned in the
two phases. Phase I covered a three-year transitional overview thereof, would have included foreign
period involving the putting up of new administrative dignitaries as signatories. In addition, representatives
structures through Executive Order, such as the of other nations were invited to witness its signing
Special Zone of Peace and Development (SZOPAD) in Kuala Lumpur. These circumstances readily lead
and the Southern Philippines Council for Peace and one to surmise that the MOA-AD would have had the
Development (SPCPD), while Phase II covered the status of a binding international agreement had it been
establishment of the new regional autonomous signed. An examination of the prevailing principles in
government through amendment or repeal of R.A. No. international law, however, leads to the contrary
6734, which was then the Organic Act of the ARMM. conclusion.
foreign heads of state or
The Decision on CHALLENGE TO
their representatives and
JURISDICTION: LOM ACCORD representatives of
international
AMNESTY[180] (the Lom Accord case) of the Special organizations, means the
Court of Sierra Leone is enlightening. The Lom agreement of the parties is
internationalized so as to
Accord was a peace agreement signed on July 7, 1999 create obligations in
between the Government of Sierra Leone and the international law.

Revolutionary United Front (RUF), a rebel group with


41. In this case, the parties to the
which the Sierra Leone Government had been in
conflict are the lawful
armed conflict for around eight years at the time of authority of the State and
the RUF which has no
signing. There were non-contracting signatories to the status of statehood and is to
agreement, among which were the Government of the all intents and purposes a
faction within the
Togolese Republic, the Economic Community of state. The non-contracting
West African States, and the UN. signatories of the Lom
Agreement were moral
guarantors of the principle
that, in the terms of Article
In the Lom Accord case, the Defence argued XXXIV of the Agreement,
this peace agreement is
that the Accord created an internationally
implemented with integrity
binding obligation not to prosecute the beneficiaries and in good faith by both
parties. The moral
of the amnesty provided therein, citing, among other guarantors assumed no
things, the participation of foreign dignitaries and legal obligation. It is
recalled that the UN by its
international organizations in the finalization of that representative appended,
agreement. The Special Court, however, rejected this presumably for avoidance of
doubt, an understanding of
argument, ruling that the Lome Accord is not a the extent of the agreement to
be implemented as not
treaty and that it can only create binding obligations
including certain
and rights between the parties in municipal law, not in international crimes.
international law. Hence, the Special Court held, it is 42. An international agreement in
ineffective in depriving an international court like it of the nature of a treaty must
create rights and obligations
jurisdiction. regulated by international
law so that a breach of its
37. In regard to the nature of a terms will be a breach
negotiated settlement of determined under
an internal armed conflict it international law which will
is easy to assume and to also provide principle means
argue with some degree of of enforcement. The Lom
plausibility, as Defence Agreement created neither
counsel for the defendants rights nor obligations
seem to have done, that the capable of being regulated
mere fact that in addition to by international law. An
the parties to the conflict, agreement such as the Lom
the document formalizing Agreement which brings to
the settlement is signed by an end an internal armed
conflict no doubt creates a
have sufficed to vest in it a binding character under
factual situation of
restoration of peace that international law.
the international
community acting through
the Security Council may In another vein, concern has been raised that
take note of. That, however,
will not convert it to an the MOA-AD would amount to a unilateral declaration
international agreement of the Philippine State, binding under international
which creates an obligation
enforceable in international, law, that it would comply with all the stipulations
as distinguished from
stated therein, with the result that it would have to
municipal, law. A breach of
the terms of such a peace amend its Constitution accordingly regardless of the
agreement resulting in
resumption of internal armed true will of the people. Cited as authority for this view
conflict or creating a threat to is Australia v. France,[181] also known as the Nuclear
peace in the determination of
the Security Council may Tests Case, decided by the International Court of
indicate a reversal of the Justice (ICJ).
factual situation of peace to
be visited with possible legal
consequences arising from
In the Nuclear Tests Case, Australia
the new situation of conflict
created. Such consequences challenged before the ICJ the legality of Frances
such as action by the Security
Council pursuant to Chapter nuclear tests in the South Pacific. France refused to
VII arise from the situation appear in the case, but public statements from its
and not from the agreement,
nor from the obligation President, and similar statements from other French
imposed by it. Such action officials including its Minister of Defence, that its
cannot be regarded as a
remedy for the breach. A 1974 series of atmospheric tests would be its last,
peace agreement which persuaded the ICJ to dismiss the case.[182] Those
settles an internal armed
conflict cannot be ascribed statements, the ICJ held, amounted to a legal
the same status as one
undertaking addressed to the international community,
which settles an
international armed which required no acceptance from other States for it
conflict which, essentially,
must be between two or to become effective.
more warring States. The
Lom Agreement cannot be
characterised as an Essential to the ICJ ruling is its finding that
international instrument. x the French government intended to be bound to the
x x (Emphasis, italics and
underscoring supplied) international community in issuing its public
statements, viz:

Similarly, that the MOA-AD would have been signed 43. It is well recognized that
by representatives of States and international declarations made by way
of unilateral acts, concerning
organizations not parties to the Agreement would not legal or factual situations,
may have the effect of
creating legal obligations.
Declarations of this kind may conveyed to the world at
be, and often are, very large, including the
specific. When it is the Applicant, its intention
intention of the State effectively to terminate
making the declaration that these tests. It was bound to
it should become bound assume that other States
according to its terms, that might take note of these
intention confers on the statements and rely on their
declaration the character of being effective. The validity
a legal undertaking, the of these statements and
State being thenceforth their legal consequences
legally required to follow a must be considered within
course of conduct the general framework of
consistent with the the security of international
declaration. An undertaking intercourse, and the
of this kind, if given publicly, confidence and trust which
and with an intent to be are so essential in the
bound, even though not made relations among States. It is
within the context of from the actual substance
international negotiations, is of these statements, and
binding. In these from the circumstances
circumstances, nothing in the attending their making,
nature of a quid pro quo nor that the legal implications
any subsequent acceptance of of the unilateral act must be
the declaration, nor even any deduced. The objects of
reply or reaction from other these statements are clear
States, is required for the and they were addressed to
declaration to take effect, the international
since such a requirement community as a whole, and
would be inconsistent with the Court holds that they
the strictly unilateral nature constitute an undertaking
of the juridical act by which possessing legal effect. The
the pronouncement by the Court considers *270 that the
State was made. President of the Republic, in
deciding upon the effective
44. Of course, not all unilateral cessation of atmospheric
acts imply obligation; but a tests, gave an undertaking to
State may choose to take up the international community
a certain position in to which his words were
relation to a particular addressed. x x x (Emphasis
matter with the intention of and underscoring supplied)
being boundthe intention is
to be ascertained by
interpretation of the
act. When States make As gathered from the above-quoted ruling of the ICJ,
statements by which their public statements of a state representative may be
freedom of action is to be
limited, a restrictive construed as a unilateral declaration only when the
interpretation is called for. following conditions are present: the statements were
xxxx clearly addressed to the international community, the
state intended to be bound to that community by its
51. In announcing that the 1974
series of atmospheric tests statements, and that not to give legal effect to those
would be the last, the
statements would be detrimental to the security of
French Government
bound otherwise than by
international intercourse. Plainly, unilateral
unilateral declarations. It is
declarations arise only in peculiar circumstances. difficult to see how it could
have accepted the terms of
a negotiated solution with
The limited applicability of the Nuclear Tests Case each of the applicants
without thereby
ruling was recognized in a later case decided by the jeopardizing its contention
ICJ entitled Burkina Faso v. Mali,[183] also known as that its conduct was lawful.
The circumstances of the
the Case Concerning the Frontier Dispute. The public present case are radically
different. Here, there was
declaration subject of that case was a statement made
nothing to hinder the
by the President of Mali, in an interview by a foreign Parties from manifesting
an intention to accept the
press agency, that Maliwould abide by the decision to binding character of the
be issued by a commission of the Organization of conclusions of the
Organization of African
African Unity on a frontier dispute then pending Unity Mediation
between Mali and Burkina Faso. Commission by the normal
method: a formal
Unlike in the Nuclear Tests Case, the ICJ agreement on the basis of
reciprocity. Since no
held that the statement of Malis President was not a
agreement of this kind was
unilateral act with legal implications. It clarified that concluded between the
Parties, the Chamber finds
its ruling in the Nuclear Tests case rested on the that there are no grounds to
peculiar circumstances surrounding the French interpret the declaration
made by Mali's head of State
declaration subject thereof, to wit: on 11 April 1975 as a
unilateral act with legal
40. In order to assess the intentions implications in regard to the
of the author of a unilateral present case. (Emphasis and
act, account must be taken of underscoring supplied)
all the factual circumstances
in which the act occurred. For
example, in the Nuclear
Tests cases, the Court took Assessing the MOA-AD in light of the above
the view that since the
applicant States were not criteria, it would not have amounted to a unilateral
the only ones concerned at
declaration on the part of the Philippine State to the
the possible continuance of
atmospheric testing by the international community. The Philippine panel did not
French Government, that
Government's unilateral draft the same with the clear intention of being bound
declarations had conveyed thereby to the international community as a whole or
to the world at large,
including the Applicant, its to any State, but only to the MILF. While there were
intention effectively to States and international organizations involved, one
terminate these tests (I.C.J.
Reports 1974, p. 269, para. way or another, in the negotiation and projected
51; p. 474, para. 53). In the
signing of the MOA-AD, they participated merely as
particular circumstances of
those cases, the French witnesses or, in the case of Malaysia, as facilitator. As
Government could not
express an intention to be held in the Lom Accord case, the mere fact that in
addition to the parties to the conflict, the peace MOA-AD may not be considered a unilateral
settlement is signed by representatives of states and declaration under international law.
international organizations does not mean that the
agreement is internationalized so as to create The MOA-AD not being a document that can bind the
obligations in international law. Philippines under international law notwithstanding,
respondents almost consummated act
Since the commitments in the MOA-AD of guaranteeing amendmentsto the legal
were not addressed to States, not to give legal effect to framework is, by itself, sufficient to constitute
such commitments would not be detrimental to the grave abuse of discretion. The grave abuse lies not in
security of international intercourse to the trust and the fact that they considered, as a solution to the Moro
confidence essential in the relations among States. Problem, the creation of a state within a state, but in
their brazen willingness to guarantee that Congress
In one important respect, the circumstances and the sovereign Filipino people would give their
surrounding the MOA-AD are closer to that imprimatur to their solution. Upholding such an act
of Burkina Faso wherein, as already discussed, the would amount to authorizing a usurpation of the
Mali Presidents statement was not held to be a binding constituent powers vested only in Congress, a
unilateral declaration by the ICJ. As in that case, there Constitutional Convention, or the people themselves
was also nothing to hinder the Philippine panel, had it through the process of initiative, for the only way that
really been its intention to be bound to other States, to the Executive can ensure the outcome of the
manifest that intention by formal agreement. Here, amendment process is through an undue influence or
that formal agreement would have come about by the interference with that process.
inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just The sovereign people may, if it so desired, go
the MILF, and by an equally clear indication that the to the extent of giving up a portion of its own territory
signatures of the participating states-representatives to the Moros for the sake of peace, for it can change
would constitute an acceptance of that the Constitution in any it wants, so long as the change
commitment. Entering into such a formal agreement is not inconsistent with what, in international law, is
would not have resulted in a loss of face for the known as Jus Cogens.[184] Respondents, however, may
Philippine government before the international not preempt it in that decision.
community, which was one of the difficulties that
prevented the French Government from entering into
a formal agreement with other countries. That the
Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound
to the international community. On that ground, the