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ASSOCIATED STATE

RIGHT TO SLEF-DETERMINATION
The province of North Cotabato
vs. The GRP
FACTS:
On August 5, 2008, the Government of the
Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective
peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRPMILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.
The signing of the MOA-AD between the GRP
and the MILF was not to materialize, however,
for upon motion of petitioners, specifically
those who filed their cases before the
scheduled signing of the MOA-AD, this Court
issued a Temporary Restraining Order enjoining
the GRP from signing the same.
The MOA-AD was preceded by a long process of
negotiation and the concluding of several prior
agreements between the two parties beginning
in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF
Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year,
they signed the General Framework of
Agreement of Intent on August 27, 1998.
The
Solicitor
General,
who
represents
respondents, summarizes the MOA-AD by
stating that the same contained, among
others, the commitment of the parties to
pursue peace negotiations, protect and respect
human rights, negotiate with sincerity in the
resolution and pacific settlement of the
conflict, and refrain from the use of threat or
force to attain undue advantage while the
peace negotiations on the substantive agenda
are on-going.
When President Gloria Macapagal-Arroyo
assumed office, the military offensive against
the MILF was suspended and the government
sought a resumption of the peace talks. The
MILF, according to a leading MILF member,
initially responded with deep reservation, but

when President Arroyo asked the Government
of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return
to the negotiating table, the MILF convened its
Central Committee to seriously discuss the
matter and, eventually, decided to meet with
the GRP.
The parties met in Kuala Lumpur on March 24,
2001, with the talks being facilitated by the
Malaysian government, the parties signing on
the same date the Agreement on the General
Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.
Formal peace talks between the parties were
held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on
the following aspects of the negotiation:
Security Aspect, Rehabilitation Aspect, and
Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same
be discussed further by the Parties in their next
meeting."

In 2005, several exploratory talks were held
between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft
MOA-AD in its final form, which, as mentioned,
was set to be signed last August 5, 2008.
Before the Court is what is perhaps the most
contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed
principally by the present petitions bearing
docket numbers 183591, 183752, 183893,
183951 and 183962.
Commonly impleaded as respondents are the
GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.

ISSUES: WON it is constitutional for
violating article 10 of the constitution?

St. however. and paragraph 4 on GOVERNANCE.--/ the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE.by its inclusion of international law instruments in its TOR. All have since become independent states. and the MOA-AD . one state. Association is referred to in paragraph 3 on TERRITORY. indicating that the Parties actually framed its provisions with it in mind. 4. The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. and even go beyond those of the present ARMM. environmental protection. St.--/ and the continuing responsibility of the Central Government over external defense. specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries.  (Manifestations of an associated state in the MOA-AD) Back to the MOA-AD. (meaning of association) [a]n association is formed when two states of unequal power voluntarily establish durable links. that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD. that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. namely. Kitts-Nevis-Anguilla. the principal. x x x150 In international practice. St. .S. It is in the last mentioned provision. with the presently In general. Nonetheless. it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive. given that there is a concept of "association" in international law. Moreover. paragraph 11 on RESOURCES. however.WON it is unconstitutional for violating the right to self –determination? HELD: (as STATE) to concept of ASSOCIATED The MOA-AD is inconsistent Constitution and laws as worded. Significantly. it contains many provisions which are consistent with the international legal concept of association. the associate. the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements. the international law concept of association. government on any foreign affairs matter affecting them. Before assessing some of the specific powers that would have been vested in the BJE. Free associations represent a middle ground between integration and independence. and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain. the MOA-AD explicitly alludes to this concept. In the basic model. the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. legislative. Vincent and Grenada. judicial and administrative institutions with defined powers and functions in the comprehensive compact. Dominica. while maintaining its international status as a state. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws. Examples of states that have passed through the status of associated states as a transitional phase are Antigua. delegates certain responsibilities to the other. resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U. Lucia.placed itself in an international legal context.

therefore. municipalities. The Constitution. It also implies the recognition of the associated entity as a state. BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention. Xxx "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 a general principle of international law. much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. in Article 1 of both covenants.  (AS TO RIGHT DETERMINATION) TO SELF- Article II. The territorial and political subdivisions of the Republic of the Philippines are the provinces. that all peoples. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces. and barangays. or municipality. however. among other things. cities. specifically the following provisions of Article X: SECTION 1. already requires for its validity the amendment of constitutional provisions. Indeed. the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government.  (The concept of association is not recognized under the present Constitution) No province.runs counter to the national sovereignty and territorial integrity of the Republic. cities. Social and Cultural Rights162 which state." International law has long recognized the right to self-determination of "peoples." Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the International Covenant on Economic. at any rate. Even the mere concept animating many of the MOA-AD's provisions. it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. not even the ARMM. does not contemplate any state in this jurisdiction other than the Philippine State. agovernment. a defined territory. a status closely approximating it. municipalities. that the Parties aimed to vest in the BJE the status of an associated state or.154 namely.These provisions of the MOA indicate. by virtue of the right of self-determination." understood not merely as the entire population of a State but also a portion thereof. the spirit animating it which has betrayed itself by its use of the concept of association . and geographical areas sharing common and distinctive historical and cultural heritage.  (The BJE is a far more powerful entity than the autonomous region recognized in the Constitution) Indeed. a permanent population. SECTION 15. and a capacity to enter into relations with other states. Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory. city. "freely determine their political status . economic and social structures. is recognized under our laws as having an "associative" relationship with the national government. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

namely.) Otherwise stated. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. even then. economic. and state practices. The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through (internal selfdetermination) . (When external self-determination may be exercised)  (Right of indigenous cultural people to self-determination) The UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295.) is subject to foreign domination or exploitation outside a colonial context. or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. The various international documents that support the existence of a people's right to selfdetermination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. in scholarship as well as international. A distinction should be made between the right of internal and external self-determination.a people's pursuit of its political. be understood as extending to a unilateral right of secession. New Zealand.S. "(ii) Scope of determination. Xxx XXX the exceptional cases in which the right to external self-determination can arise. As with the broader category of "peoples. 127. The establishment of a sovereign and independent State.165 but they do have rights amounting to what was discussed above as the right to internal self-determination. 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-determination by that people. indigenous peoples. nations. encompassing the right to autonomy or self-government." The people's right to self-determination should not. and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. * (External self-determination can be defined as in the following statement from the Declaration on Friendly Relations. Canada. and cultural development.less definitely but asserted by a number of commentators -3. Turning now to the more specific category of indigenous peoples.) is blocked from the meaningful exercise of its right to internal self-determination. the Philippines being included among those in favor." indigenous peoples situated within states do not have a general right to independence or secession from those states under international law. to wit: . and .and freely pursue their economic. social and cultural development within the framework of an existing state. to refer to groups with distinct cultures. however. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. social. 2. The vote was 143 to 4. and the U. under carefully defined circumstances. A right to (external selfdetermination )(which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and. regional. this term has been used. histories. The Declaration clearly recognized the right of indigenous peoples to selfdetermination. and the four voting against being Australia.) where a people is under colonial rule. the Right to Self- 126. 1.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. supra.

the principle may be inferred that the President . respondents invoke the 1987 Constitution. While the President does not possess constituent powers .S. To support the legality of their actions. social and cultural development.she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. OCHOA Saguisag EDCA case Facts The petitions 1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines and the United States of America (U. Nothing in this Declaration may be interpreted as implying for any State.S. but she may not be prevented from submitting them as recommendations to Congress.in the course of conducting peace negotiations . Sections 1 and 3 of the Constitution. In particular. but she may not unilaterally implement them without the intervention of Congress. Saguisag vs. does not obligate States to grant indigenous peoples the near-independent status of an associated state. it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. totally or in part. group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations orconstrued as authorizing or encouraging any action which would dismember or impair. Section 2 of the Constitution.as those powers may be exercised only by Congress. of course. Congress would have the option. respondents argue that petitioners lack standing to bring the suit.Article 3 Indigenous peoples have the right to selfdetermination. to propose the recommended amendments or revision to the people. treaties. call a constitutional convention. or submit to the electorate the question of calling such a convention. act upon them pursuant to the legal procedures for constitutional amendment and revision. w/n the case is ripe for judicial review 2. Xxx and other articles. Issue: 1. people. the territorial integrity or political unity of sovereign and independent States. Even if the UN DRIP were considered as part of the law of the land pursuant to Article II. if it is minded. Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the U. or act in any way as if the assent of that body were assumed as a certainty. unilaterally implement the solutions that she considers viable. pursuant to Article XVII. The UN DRIP. Is the president empowered to enter agreement involving military and defense internationally . while upholding the right of indigenous peoples to autonomy. In reply. and judicial precedents.). claiming that the instrument violated multiple constitutional provisions. By virtue of that right they freely determine their political status and freely pursue their economic.may validly consider implementing even those policies that require changes to the Constitution. All the rights recognized in that document are qualified in Article 46 as follows: 1. a Constitutional Convention. or the people through initiative and referendum .  (Invalidity of the MOA since not made by congress through a law as mandated by consti) The President may not. which could then. From the foregoing discussion.

is the the Ruling 1st issue: These are the specific safeguards laid down by the Court when it exercises its power of judicial review. It would therefore be remiss for the President and repugnant to the faithfulexecution clause of the Constitution to do nothing when the call of the moment requires increasing the military's defensive capabilities. Section 25. which could include forging alliances with states that hold a common interest with the Philippines or bringing an international suit . facilities. The DFA has already confirmed to the U. the case has transcendental importance to disregard the direct injury required by the rules. invasion. Hence.S. The transcendental importance of the issues presented here is rooted in the Constitution itself. Article XVIII of the Constitution. cannot be any clearer: there is a much stricter mechanism required before foreign military troops. especially when paramount interest is involved." It behooves the Court in this instance to take a liberal stance towards the rule on standing and to determine forthwith whether there was grave abuse of discretion on the part of the Executive Department. Embassy that "all internal requirements of the Philippines x x x have already been complied with. The expansion of this power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. Of these four. According to the SC even if the general assertion of the petitioner that they have a standing as citizen for failure to allege the specific possible or present violation of public and citizen rights. The power of judicial review has since been strengthened in the 1987 Constitution. even in times when there is no state of lawlesss violence. Section 25. is clear that the presence of foreign military forces in the country shall only be allowed by virtue of a treaty concurred in by the Senate. and ( d) the issue of constitutionality is the !is mota of the case. ( c) the question of constitutionality is raised at the earliest opportunity. the Court may exercise its sound discretion and take cognizance of the suit. or bases may be allowed in the country. While petitioners Saguisag et al. Guided by these pillars. this Court has indeed taken a liberal stance towards the requirement of legal standing.3. or rebellion. when those who challenge the official act are able to craft an issue of transcendental significance to the people. Indeed. they nonetheless raised issues involving matters of transcendental importance. w/n the the EDCA unconstitutional for lacking required concurrence of Senate. At such times." The petitioner has shown actual case and controversy. together with the oral arguments. And this duty of defending the country is unceasing. (b) petitioners possess locus standi. it may invoke the power only when the following four stringent requirements are satisfied: (a) there is an actual case or controversy. It is no coincidence that the constitutional provision on the faithful execution clause was followed by that on the President's commander-in-chief powers. the performance of an official act by the Executive Department that led to the entry into force of an executive agreement was sufficient to satisfy the actual case or controversy requirement. invasion. the President has full powers to ensure the faithful execution of the laws. An exhaustive evaluation of the memoranda of the parties. do not have legal standing. Article XVIII thereof.which are specifically granted during extraordinary events of lawless violence. In a number of cases. It may do so in spite of the inability of the petitioners to show that they have been personally injured by the operation of a law or any other government act. it is the President's prerogative to do whatever is legal and necessary for Philippine defense interests. The scope of that power has been extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation of another branch of government. shows that petitioners have presented serious constitutional issues that provide ample justification for the Court to set aside the rule on standing. 2nd Issue: In light of this constitutional duty. the first two conditions will be the focus of our discussion. or rebellion. We therefore rule that this case is a proper subject for judicial review. an exercise of discretion has been attended with grave abuse.

Is executive agreement same as international agreement? The framers specifically deliberated on whether the general term "international agreement" included executive agreements. troops. laws. It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements of a treaty under Section 21 of Article VII. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. that executive agreement do not require the concurrence of the Senate. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature. The raison d'etre of executive agreements hinges on prior constitutional or legislative authorizations. foreign military bases. the constitutionally restricted authority pertains to the entry of the bases. Because it merely involves arrangements on the implementation of existing policies. or facilities. executive . or treaties. except under a treaty concurred in by the Senate. not to defeat or interfere in the performance of these rules. it is mandated to comply with the limitation prescribed in the exercise of such right. Court’s jurisprudence and statutes. except by way of a treaty concurred in by the Senate . This wording signifies that the President is not authorized by law to allow foreign military bases. and recognized as a treaty by the other contracting State. In turn. however. or (3) in the exercise of the President's independent powers under the Constitution. rules. This means that both provisions must be read as additional limitations to the President's overarching executive function in matters of defense and foreign relations. troops. Executive agreements are defined by the court an international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature. The plain meaning of the Constitution prohibits the entry of foreign military bases. (2) pursuant to or upon confirmation by an act of the Legislature. or facilities to enter the Philippines. troops. and whether it was necessary to include an express proviso that would exclude executive agreements from the requirement of Senate concurrence. troops. It is settled by the Constitutional Commission. if (a) it is not the instrument that allows the presence of foreign military bases. They are concluded (1) to adjust the details of a treaty. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. does not include executive agreements. statutes. One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate concurrence. Hence.a clear limitation on the President's dual role as defender of the State and as sole authority in foreign relations. Clearly the President has the prerogative to enter the same. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading." SECTION 25. The initial limitation is found in Section 21 of the provisions on the Executive Department: "No treaty or international agreement shall be valid and effective unless concurred in by at least two thirds of all the Members of the Senate. or (b) it merely aims to implement an existing law or treaty.against an offending state. executive agreements must remain traceable to an express or implied authorization under the Constitution. may enter into an executive agreement on foreign military bases. the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases. troops. Note that the provision "shall not be allowed" is a negative injunction. and not to the activities to be done after entry. or agreements. when the Congress so requires. Although the President has the power to enter into international agreement. or facilities. Despite the President's roles as defender of the State and sole authority in foreign relations. The President. Difference between treaties and Executive Agreements First. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. or facilities. and that a proviso is no longer needed. Article VII. the Constitutional Commission members ultimately decided that the term "international agreements" as contemplated in Section 21. troops or facilities. troops or facilities.

EDCA is clear that the Philippines retains ownership of altered or improved facilities and newly constructed permanent or non-relocatable structures. to build permanent structures or alter or improve existing ones for. jointly and by mutual aid. x x x. temporary accommodation of personnel.S. 3rd Issue: The President had the choice to enter into EDCA by way of an executive agreement or a treaty. According to Article I of EDCA. personnel have a right to. and to be owned by. The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned executive agreements.-owned or -controlled military facilities and bases in the Philippines In this case. which are solely executive actions. EDCA does not allow the presence of U. U. the government asserts sovereignty over its territory. the Senate has a role in ensuring that treaties or international agreements the President enters into. From the text of EDCA itself. EDCA authorizes the U. What can be gleaned from the provisions of the VF A. Instead of authorizing the building of temporary structures as previous agreements have done. EDCA is consistent with the content. is access to and use of these locations. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective. the individual and collective capacities of both countries to resist an armed attack. Second.S. As it is." To determine the parameters of these implementing arrangements and activities. EDCA is not constitutionally infirm. support and related activities. the joint report of the Senate committees on foreign relations and on national defense and security. pending mutual agreement. forces will also be allowed to use facilities and areas for "training. An executive agreement is treated differently.S. If there is an irreconcilable conflict. purpose. by their very nature. It further states that the activities are in furtherance of the MDT and within the context of the VFA. Because of legislative participation through the Senate. a later law or treaty takes precedence over one that is prior. Executive agreements may cover the matter of foreign military forces if it merely involves detail adjustments. The power to defend the State and to act as its representative in the international sphere inheres in the person of the President. The new EDCA would grant American troops. EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine govemment. That sovereignty exists so long as the Filipino people exist. however.agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement. What U. forces are allowed to access and use. Under EDCA. ships and planes rotational access to facilities of the Armed Forces of the Philippines – but not permanent bases which are prohibited under the Philippine Constitution with the result of reducing response time should an external threat from a common adversary crystallize.S. mere adjustments in detail to implement the MDT and the VFA can be in the form of executive agreements. and framework of the MDT and the VFA. the Philippines. Agreed Locations are territories of the Philippines that the U. EDCA is one such agreement. and framework of the MDT and the VFA. As an executive . considered superior to executive agreements. Treaties are products of the acts of the Executive and the Senate unlike executive agreements. communications" and agreed activities. and the ruling of this Court in Lim is that the "activities" referred to in the treaty are meant to be specified and identified infurther agreements. does not crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires. x x x. obtain the approval of two-thirds of its members. This power. purpose.S. Both types of international agreement are nevertheless subject to the supremacy of the Constitution. one of the purposes of these activities is to maintain and develop. By withholding ownership of these areas and retaining unrestricted access to them. treaties are. Manifest in the provisions (MDT and VFA) is the abundance of references to the creation of further "implementing arrangements" including the identification of "activities [to be] approved by the Philippine Government. Just like the Terms of Reference mentioned in Lim. as contemplated in Section 21 of Article VII of the Constitution. As previously mentioned. we referred to the content. a treaty is regarded as being on the same level as a statute.

agreement. it remains consistent with existing laws and treaties that it purports to implement. .