Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 183591, 183752, 183893 and 183951 - THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners, versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN, and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.
Promulgated:
October 14, 2008
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SEPARATE OPINION
AZCUNA, J.:
I agree with the ponencia but I hold the view that, had the MOA-AD been signed as planned, it would have provided a basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral declaration made before representatives of the international community with vital interests in the region.
Whether the case of Australia v. France1 or that of Burkina Faso v. Mali,2 is the one applicable, is not solely for this Court to decide but also for the international court where the Philippines could be sued. While we may agree that the Philippines should not be considered bound, the international court may rule otherwise. There is need to consult the people before risking that kind of outcome.
On this point, Martin Dixon and Robert McCorquodale, in their CASES AND MATERIALS ON INTERNATIONAL LAW, observe:
B. Unilateral statements
Nuclear Test Cases (Australia v. France and New Zealand v. France)
Merits
ICJ Rep. 1974 253, International Court of Justice
Australia and New Zealand brought proceedings against France arising from nuclear tests conducted by France in the South Pacific. Before the Court had an opportunity to hear in full the merits of the case, statements were made by French authorities indicating that France would no longer conduct atmospheric nuclear tests. The court held by nine votes to six that, due to these statements by France, the claim of Australia and New Zealand no longer had any object and so the Court did not have to decide the issues in the case.
It is well recognized that declarations made by way of unilateral acts, concerning 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, not 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....
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NOTES:
1. It is very rare that a Court will find that a unilateral statement will bind a State. In Frontier Dispute Case (Burkina Faso v. Mali) 1986 ICJ Rep 554, a Chamber of the International Court of Justice held that a statement by the President of Mali at a press conference did not create legal obligations on Mali, especially as ‘The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.' (para. 39).3
Finally, precedents are not strictly followed in international law, so that an international court may end up formulating a new rule out of the factual situation of our MOA-AD, making a unilateral declaration binding under a new type of situation, where, for instance, the other party is not able to sign a treaty as it is not yet a State, but the declaration is made to a "particular recipient" and "witnessed" by a host of sovereign States.
As to the rest, I concur.
ADOLFO S. AZCUNA
Associate Justice
Footnotes
1 1974 I.C.J. 253.
2 1986 I.C.J. 554.
3 Pp. 59-61, emphasis supplied.
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