Revisiting the right of self-determination

A PEOPLE’S right to preserve their own cultural identity and control the course of their political life is known in modern international law as the right of self-determination. It is closely associated with a claim to a territory in which they can observe their customs and practices and govern themselves, a land alluded to, with emotional overtones, as the ancestral domain or homeland.

The Moro Islamic Liberation Front ultimately seeks the independence of the Bangsamoro homeland embracing the whole of Mindanao, Sulu and Palawan. But because the region is part of the territory of a sovereign state, the Republic of the Philippines, it bargained with the national government for a smaller core territory within which it can exercise a degree of self-governance, with a mechanism to expand it at a later time.

In a memorandum of agreement with the negotiating panel of the Arroyo administration in 2008, the MILF was able to secure the concession that the entire Minsupala region was Bangsamoro, with a core territory made up of the five provinces constituting the Autonomous Region in Muslim Mindanao. The signing of this agreement was aborted by the historic decision of the Supreme Court, which found that the associative state sought to be established in the Bangsamoro was unconstitutional. This did not dampen interest in the process, and negotiations continued under the Aquino administration until another accord was reached, the Comprehensive Agreement on the Bangsamoro.

In this new pact, the associative relationship between the national government and the Bangsamoro outlawed in the 2008 decision was resurrected under the euphemism asymmetrical relationship, and concrete proposals were adopted that made the Bangsamoro, like the associative state under the MOA on Ancestral Domain, more powerful than the ARMM. A proposed Bangsamoro Basic Law setting up this new government was submitted by President Aquino to Congress, and in it, the unqualified right of the Bangsamoro to self-determination was announced.

There are, briefly, two ways in which a people’s right to self-determination may be treated by the state: Either the homeland is granted a measure of self-government within the framework of the territorial sovereignty and laws of a state, or it is allowed to secede. When US President Woodrow Wilson expounded the principle of self-determination in 1918, after World War I, he had in mind the liberation of the colonies of the defeated states. Since then, international law has come to recognize the right of the colonized peoples to obtain independence from colonial rule. From 1946 to 1960, there were some 37 colonial dependencies, including the Philippines, that emerged from colonial status.

In many instances, the territories of these new states hewed to the same boundaries that existed when they were still colonies irrespective of the cultural and ethnic bonds within their borders. Since there were many more national groups than states, it was common to find two or more living within one state. In keeping with their sovereignty, states protected their boundaries even as they dealt, in one way or another, with their ethnic diversity.

A principle of international law known as uti possidetis juris supports this result. In the interest of international stability, the colonial boundaries of emerging states are deemed protected. To grant every ethnic group the right of independence will result in the emergence of an enormous number of states in the international community, which will be intolerable. Uti possidetis is in accord with the principle of state sovereignty. As a rule, territorial integrity prevails where self-determination has the effect of altering the boundaries of the state in which the group lives.

International law thus recognizes a people’s right to self-determination, but does not insist on independence as the way to achieve self-government. There may be, compatibly with the sovereignty of the state, federation, autonomy or the recognition of nonterritorial civil and political rights.

In a liberal constitutional democracy such as ours, it is the principle of majority rule that dictates whether a minority can secede, and the Filipino people have expressed through the Constitution that they will not allow secession. It is provided instead, in Article X, that Muslim Mindanao shall have an autonomous government within the framework of the Constitution. Muslim autonomy must, therefore, exist under the territorial sovereignty and within the constitutional constraints of the republic.

The precedence of the territorial principle over self-determination has been clearly played out in the case of the unilateral secession of Quebec from Canada. Quebec is a French-speaking province of a country that is predominantly English. The people of Quebec sought to become independent from the rest of Canada, but in a case that reached the Canadian Supreme Court it was held that the Quebec population did not have a unilateral right of secession. Self-determination is generally considered fulfilled, not by secession, but through an internal democratic process whereby a people’s pursuit of political and social development occurs within the framework of the existing state.

But even if internal, self-determination must be meaningful. A respected view holds that when a people are oppressed by the majority or when they are deprived of a voice in the governance of their territory, they may invoke the right to secede. In exceptional cases, self-determination trumps territorial integrity.

The Quebec court ruled that the people of Quebec were neither under colonial rule nor deprived of the freedom to make political choices and pursue their development. That is why they cannot be accorded the right to secede. We believe, in a similar vein, that the Muslims in Mindanao have space within our republic to exercise self-determination. Under the 1987 Constitution, a Bangsamoro autonomy is envisioned that can achieve its development internally. Self-determination should not lead to separation or independence.

In the end, a strong nation rests on the collective efforts of the peoples living therein, Christians, Muslims and lumad. We must all cooperate under a regime of one system of laws, the Constitution. If we cannot do this, in the words of the Book of Proverbs, we will inherit the wind.

Mario Guariña III is a former associate justice of the Court of Appeals.