MEMORANDUM OF LAW: TO: FR. RANHILIO C. AQUINO FROM: STEPHANIE S.

TAMAYAO DATE: JANUARY 16, 2012 RE: A DEMAND FOR CREATION OF A SEPARATE STATE, THE BANGSA MORO QUESTIONS PRESENTED: 1. Requisites of statehood in respect of Muslim Mindanao; 2. The right of Muslim Mindanao to self-determination; 3. The obligation of the Government of the Republic of the Philippines to recognize Bangsa Moro. PREFATORY STATEMENT: The natives of Muslim Mindanao became inflexible on their ultimatum for a separate state. Because of the seething struggle, they contend that the Autonomous Region does not meet their objectives or aspiration. They demanded a separate state, characterized by the historical and symmetric marginalization and minoritization of the Islamized ethno-linguistic groups, collectively called, Bangsa Moro. Their claim possess the right of self-determination and that this right has to be brought to fruition. DISCUSSION: The Montevideo Convention on the Rights and Duties of States sets the requisites an entity should possess in order for a state to be regarded as one. In Article 1, it states that: The state as a person of international law should possess the following qualifications: a) there must be a definite territory b) must have a self-sustaining population c) there must be a central government d) must be capable to enter into international relations There is a wide consensus to understand the standard: (a) a definite territory. It is only important that a country has a clear core territory in order to be a state. Neither the size of the territory itself important nor do the boundaries have to be defined precisely. (b) self-sustaining population. Regions inhabited by wandering nomads are understood to having a permanent population and therefore are not terra nullius (a territory belonging to no one), which itself can be legally acquired by existing states. Additionally, the size of the population is not essential but there must be a such to carry on its affairs. (c) central government.It must be a central government that by law, exercises effective control. Once an entity has government and has become a state, it does not lose its statehood just for a failed government because the fall of the government does not mean fall of the state. (d) capacity to enter into foreign relations with the other states. There is a need for the government to be capable to begin and pursue international relations, in accordance with Article 31.1 VCLT, the need for the government to be sovereign over its territory and its people in order to be able to commence international relations can be constructed. Indeed, the ICJ has spoken about the link of effectiveness and sovereignty in its advisory opinion about the Western Sahara case. Hence, under the principle of effectiveness, which has been deduced

from the MC, states have to be able to employ effective power on the territory and the people and be able to enter international relations. And that states have to be recognized as such by other states so that they have the capacity to start relations. But here, it has to be strictly adhered to the text of the treaty. Capacity means the theoretical ability to enter international relations, in other words, the effective power. The right to self-determination.

The right to self-determination is the right of people everywhere to freely determine their political status, and to freely pursue their economic, social and cultural development. The right to self-determination has political, economic, social and cultural aspects. For this right to be fully effective, the realization of the political, economic, social and cultural sovereignty of peoples is crucial. Self-determination is a continuing process where people continue to make choices to achieve human security and to fulfill human needs.

The Bangsamoro people have the right to self-determination. They qualify as people who hold the right to self-determination, because they have a common historical tradition and religious affinity and share many cultural practices. They occupy contiguous territory (maritime societies are connected by the sea) with rich natural resources. The right of peoples to self-determination is enshrined in many United Nations instruments, among which are: Article 55 of the United Nations charter, which provides that the world body shall create conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.. Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and repeated in Article 1 of the International Covenant on Civil and Political Rights (ICCPR), which makes this statement: All peoples have the right of self-determination, including the right to determine their political status and freely pursue their economic, social and cultural development. General Assembly resolution 1514 (XV) of 14 December 1960, which states that, All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Right and international human rights law. Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or selfgovernment in matters relating to their internal and local affairs, as well as ways and means for

financing their autonomous functions.

Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination."[166] The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder: Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or d destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration amd; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the i indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous peoples concerned, through

appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities. Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the d development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water o or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive a arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements. Article 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.