Constitutional Law 1

The Concept of the State, Elements of a state: Territory

The international law concept of association; “a state within a state”

G.R. No. 183591, Oct. 14, 2008

Province of North Cotabato v. GRP

I. Facts

 On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of
the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

 The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

Concepts and Principles

 It defines "Bangsamoro people" as the natives or original inhabitants of
Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses;

 The MOA-AD proceeds to refer to the "Bangsamoro homeland," the

ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation. Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain;

 The Bangsamoro people are acknowledged as having the right to self-

governance…;

 The MOA-AD goes on to describe the Bangsamoro people as "the ‘First

Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations.";

 The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.

Case Digest by Cyril Ann Fernandez

 Territory

 The territory of the Bangsamoro homeland is described as the land mass

as well as the maritime, terrestrial, fluvial and alluvial domains,
including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.

 The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction
over all natural resources within its "internal waters," …that the BJE
shall also have "territorial waters,"…and that within these territorial
waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management
over all natural resources. Notably, the jurisdiction over the internal
waters is not similarly described as "joint."

Resources

 The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have
the option to establish trade missions in those countries.

 The Central Government is also bound to "take necessary steps to

ensure the BJE's participation in international meetings and events" like
those of the ASEAN and the specialized agencies of the UN.

 With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and
natural gas, the jurisdiction and control thereon is to be vested in the
BJE "as the party having control within its territorial jurisdiction."

 The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.

Governance

 The MOA-AD binds the Parties to invite a multinational third-party to

observe and monitor the implementation of the Comprehensive
Compact.

Case Digest by Cyril Ann Fernandez

  The MOA-AD describes the relationship of the Central Government and
the BJE as "associative," characterized by shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions
with defined powers and functions in the Comprehensive Compact.

 The international law concept of association. Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its provisions with it in mind.

 Keitner and Reisman state that: [a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international status as a state.

 In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence.

 Back to the MOA-AD, it contains many provisions which are consistent with the international
legal concept of association.

 The concept of association is not recognized under the present Constitution.

 The Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence.

 BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population (refer back to MOA-AD’s Concepts and Principles),
a defined territory, a government (refer back to MOA-AD’s Governance), and a capacity to enter
into relations with other states (refer back to MOA-AD’s Resources).

 The concept of association runs counter to the national sovereignty and territorial integrity of
the Republic.

II. Issue/s

 Whether by signing the MOA, the Government of the Republic of the Philippines would
be BINDING itself to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized by law.

 Do the contents of the MOA-AD violate the Constitution and the laws?

Case Digest by Cyril Ann Fernandez

III. Ruling
 The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on its way to independence.

 The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.

Case Digest by Cyril Ann Fernandez