04/02/2020
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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 Lomé 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 President's 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 statesrepresentatives 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
amendments to the legal framework is, by itself, sufficient to constitute
grave abuse of discretion. The grave abuse lies not in the fact that they
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/47263
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