‘Agreement of the parties’

There was solemnity then jubilation in Malacañang on that fateful day in October. A framework agreement was signed between the Philippine government and the Moro Islamic Liberation Front to bid farewell to arms after 40 years of conflict, and to establish a new political entity called “Bangsamoro” which would replace the Autonomous Region in Muslim Mindanao. The occasion was graced by local and foreign dignitaries led by President Aquino, MILF chief Murad Ibrahim and the Prime Minister of Malaysia.

In crafting the FA, the negotiating panels headed by the government’s Marvic Leonen and the MILF’s Mohagher Iqbal chose to be nebulous and to be guided by “agreement[s] of the parties,” past and present. They assured us that consultations had been made with all concerned, but they obviously ignored Nur Misuari, a “founder” of the ARMM, the political entity they wanted to reform. They stressed that the Basic Law that would complete the final accord would be enacted by Congress, in accordance with the “agreement of the parties.”

In domestic law, an agreement is normally called a “contract.” The will of the parties is controlling. Whether written or oral, it has to respect the Constitution and the law. It may also be circumscribed by public policy, morals and custom. The parties give to each other their palabra de honor.

In international law, the agreement is generically called a “treaty.” Under the 1969 Vienna Convention on the Law of Treaties, any written agreement between or among states, regardless of nomenclature, is a treaty. Generally, in US and Philippine practice, the treaty is ratified by the head of state, the president, and concurred in by the Senate. Without such concurrence, the agreement is referred to as “executive agreement,” equally binding on the state as a treaty.

In an international plane, such as a tribunal, a state cannot invoke its constitution to evade or defeat its obligations under the treaty. A treaty, however, may not derogate upon “peremptory norms” of international law, designated as  jus  cogens. In a domestic plane, like a local court, the state constitution may prevail over the treaty. A treaty must be honored. Pacta  sunt  servanda.

The Tripoli Agreement, duly signed by the respective plenipotentiaries of Ferdinand Marcos and Moammar Gadhafi, was a treaty. Misuari was a lucky rebel who found a sponsor-state willing to meddle and champion his cause. But Marcos, who claimed that he abided by the Tripoli Agreement, was correct enough to have insisted on predicating its implementation on the legal formula, “in accordance with constitutional processes,” thus forestalling the dismemberment of the republic and preserving its territorial integrity and sovereignty.

The Memorandum of Agreement on Ancestral Domain (MOA-AD) certainly was not a treaty; it was a mere contract. But it tried to impose the terms of the Tripoli Agreement to create a “mini” state within, or “associative” with, the small republic of the Philippines. The Supreme Court rose to the occasion and struck down the MOA-AD as unconstitutional in the nick of time. Had the MOA-AD been signed in Kuala Lumpur, the Bangsamoro state would have been born prematurely, with the anticipated international recognition by officious states waiting in the wings, such as Malaysia, the United States, Japan, Australia, and members of the Organization of Islamic Conference (now Cooperation).

And the framework agreement is, obviously, a mere contract, not a treaty, despite the international trimmings surrounding the negotiations. It apparently clings to the phrase “agreement[s] of the parties” to support the reliance of the negotiating panels on the “flexibilities” of the Constitution in not advocating, for the meantime, constitutional amendments to buttress the creation and existence of Bangsamoro—asymmetrical with the central government of the republic.

What transpired in Malacañang that day in October reminds us of a similar event thousands of years ago by the waters of Tigris-Euphrates. The “tribe-nations” of Lagash and Umma concluded a peace “treaty,” witnessed by a “thousand gods,” representing the first ever recorded (on clay tablets) treaty of peace in the annals of humankind. However, then as now, the agreement was disregarded and the losing party launched a war of revanche. In 1938, Adolf Hitler signed a treaty with Neville Chamberlain but afterward crumpled it, as a “mere scrap of paper,” plunging Europe into World War II.

“Peace in our time” has reigned off and on, in ancient Babylon, Egypt, Athens and Sparta, Italian city-states, and our modern nation-states. Only one or two lessons predominate in international relations. One is that international politics is amoral; nothing counts, except national interest. Another is that there are no permanent allies or enemies, only permanent interests.

Some legal luminaries have constitutional concerns on the framework agreement. A “ministerial” form of government for Bangsamoro needs constitutional adjustments; it is clearly inconsistent with “within the framework of the Constitution” on constitutional autonomy, and with the presidential central government. They have doubts on expressions, like “asymmetric,” with which they are professionally unfamiliar, and “flexibilities” of the Constitution whose expansion may easily reach the limits of judicial tolerance.

Making treaties, laws and contracts, as in any other formal drafting, favors simple and plain words rather than big, complex and ambiguous terms which inevitably lead to debate and constitutional challenge.

Surely, the participants in the Bangsamoro story are committed to forever silence the guns of Mindanao: “to beat spears into ploughshares,” so that “nations would not rise against nations” anymore—the original dream of the first written peace treaty, now enshrined at the portals of the United Nations in New York.

Nelson D. Laviña, a lawyer and a retired career ambassador, was a UN fellow in international law. He was detailed at the UN Legal Office in New York and attended The Hague Academy of International Law in 1967. He authored “Executive Agreements,” published in the UP Law Journal in 1968. He was assigned ambassador to all UN offices in Geneva, Vienna and Nairobi, except New York where he attended conferences.