By the time these changes are put in place, the
MOA-AD itself would be counted among the prior
agreements from which there could be no
derogation.
What remains for discussion in the Comprehensive
Compact would merely be the implementing details
for these consensus points and, notably,
the deadline for effecting the contemplated changes to
the legal framework.
Plainly, stipulation-paragraph 7 on
GOVERNANCE is inconsistent with the limits of
the Presidents authority to propose constitutional
amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all
the consensus points found in the MOA-AD. Hence, it
must be struck down as unconstitutional.
A comparison between the suspensive clause
of the MOA-AD with a similar provision appearing in
the 1996 final peace agreement between the MNLF
and the GRP is most instructive.
As a backdrop, the parties to the 1996
Agreement stipulated that it would be implemented in
two phases. Phase I covered a three-year transitional
period involving the putting up of new administrative
structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD)
and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous
government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of
specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that
extent, they are similar to the provisions of the MOA-
AD. There is, however, a crucial difference between
the two agreements. While the MOA-AD virtually
guarantees that the necessary changes to the legal
framework will be put in place, the GRP-MNLF
final peace agreement states thus: Accordingly, these
provisions [on Phase II] shall be recommended by the
GRP to Congress for incorporation in the amendatory
or repealing law.
Concerns have been raised that the MOA-AD would
have given rise to a binding international law
obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that
it may be considered either as a binding agreement
under international law, or a unilateral declaration of
the Philippine government to the international
community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither
ground finds sufficient support in international law,
however.
The MOA-AD, as earlier mentioned in the
overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives
of other nations were invited to witness its signing
in Kuala Lumpur. These circumstances readily lead
one to surmise that the MOA-AD would have had the
status of a binding international agreement had it been
signed. An examination of the prevailing principles in
international law, however, leads to the contrary
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
be, and often are, very
specific. 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 being thenceforth
legally required to follow a
course of conduct
consistent with the
declaration. An undertaking
of this kind, if given publicly,
and with an intent to be
bound, even though not made
within the context of
international negotiations, is
binding. In these
circumstances, nothing in the
nature of a quid pro quo nor
any subsequent acceptance of
the declaration, nor even any
reply or reaction from other
States, is required for the
declaration to take effect,
since such a requirement
would be inconsistent with
the strictly unilateral nature
of the juridical act by which
the pronouncement by the
State was made.
44. Of course, not all unilateral
acts imply obligation; but a
State may choose to take up
a certain position in
relation to a particular
matter with the intention of
being boundthe intention is
to be ascertained by
interpretation of the
act. When States make
statements by which their
freedom of action is to be
limited, a restrictive
interpretation is called for.
xxxx
51. In announcing that the 1974
series of atmospheric tests
would be the last, the
French Government
conveyed to the world at
large, including the
Applicant, its intention
effectively to terminate
these tests. It was bound to
assume that other States
might take note of these
statements and rely on their
being effective. The validity
of these statements and
their legal consequences
must be considered within
the general framework of
the security of international
intercourse, and the
confidence and trust which
are so essential in the
relations among States. It is
from the actual substance
of these statements, and
from the circumstances
attending their making,
that the legal implications
of the unilateral act must be
deduced. The objects of
these statements are clear
and they were addressed to
the international
community as a whole, and
the Court holds that they
constitute an undertaking
possessing legal effect. The
Court considers *270 that the
President of the Republic, in
deciding upon the effective
cessation of atmospheric
tests, gave an undertaking to
the international community
to which his words were
addressed. x x x (Emphasis
and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ,
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 community by its
statements, and that not to give legal effect to those
statements would be detrimental to the security of

international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case
ruling was recognized in a later case decided by the
ICJ entitled Burkina Faso v. Mali,[183] also known as
the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made
by the President of Mali, in an interview by a foreign
press agency, that Maliwould abide by the decision to
be issued by a commission of the Organization of
African Unity on a frontier dispute then pending
between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ
held that the statement of Malis President was not a
unilateral act with legal implications. It clarified that
its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French
declaration subject thereof, to wit:
40. In order to assess the intentions
of the author of a unilateral
act, account must be taken of
all the factual circumstances
in which the act occurred. For
example, in the Nuclear
Tests cases, the Court took
the view that since the
applicant States were not
the only ones concerned at
the possible continuance of
atmospheric testing by the
French Government, that
Government's unilateral
declarations had conveyed
to the world at large,
including the Applicant, its
intention effectively to
terminate these tests (I.C.J.
Reports 1974, p. 269, para.
51; p. 474, para. 53). In the
particular circumstances of
those cases, the French
Government could not
express an intention to be
bound otherwise than by
unilateral declarations. It is
difficult to see how it could
have accepted the terms of
a negotiated solution with
each of the applicants
without thereby
jeopardizing its contention
that its conduct was lawful.
The circumstances of the
present case are radically
different. Here, there was
nothing to hinder the
Parties from manifesting
an intention to accept the
binding character of the
conclusions of the
Organization of African
Unity Mediation
Commission by the normal
method: a formal
agreement on the basis of
reciprocity. Since no
agreement of this kind was
concluded between the
Parties, the Chamber finds
that there are no grounds to
interpret the declaration
made by Mali's head of State
on 11 April 1975 as a
unilateral act with legal
implications in regard to the
present case. (Emphasis and
underscoring supplied)
Assessing the MOA-AD in light of the above
criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the
international community. 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 any State, but only to the MILF. While there were
States and international organizations involved, one
way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As
held in the Lom Accord case, the mere fact that in
addition to the parties to the conflict, the peace
settlement is signed by representatives of states and
international organizations does not mean that the
agreement is internationalized so as to create
obligations in international law.
Since the commitments in the MOA-AD
were not addressed to States, not to give legal effect to
such commitments would not be detrimental to the
security of international intercourse to the trust and
confidence essential in the relations among States.
In one important respect, the circumstances
surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the
Mali Presidents statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine panel, had it
really been its intention to be bound to other States, to
manifest that intention by formal agreement. Here,
that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just
the MILF, and by an equally clear indication that the
signatures of the participating states-representatives
would constitute an acceptance of that
commitment. Entering into such a formal agreement
would not have resulted in a loss of face for the
Philippine government before the international
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
MOA-AD may not be considered a unilateral
declaration under international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding,
respondents almost consummated act
of guaranteeing amendmentsto the legal
framework is, by itself, sufficient to constitute
grave abuse of discretion. The grave abuse lies not in
the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in
their brazen willingness to guarantee that Congress
and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act
would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves
through the process of initiative, for the only way that
the Executive can ensure the outcome of the
amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go
to the extent of giving up a portion of its own territory
to the Moros for the sake of peace, for it can change
the Constitution in any it wants, so long as the change
is not inconsistent with what, in international law, is
known as Jus Cogens.[184] Respondents, however, may
not preempt it in that decision.