Treaties in Peace Processes

Concept of a Treaty in Peace Processes

• The Vienna Convention on the Law of Treaties (VCLT) governs treaties made between States.
• According to Article 2(1)(a) of the VCLT, a treaty is an international agreement concluded between States, in written form, and governed by international law.
• Article 3 clarifies that the VCLT does not cover agreements between States and other subjects of international law, or agreements not in written form.
• Under Article 3, the exclusion of certain agreements does not affect their legal force, the application of international law rules to them, or the VCLT's application to State relations.

Agreements with National Liberation Movements

• National liberation movements (NLMs) can have international agreement-making capacity if they represent a people entitled to self-determination.
• Under Article 96(3) of the 1977 Additional Protocol I to the Geneva Conventions, NLMs can unilaterally declare the Geneva Conventions (1949) and Protocol I (1977) applicable to their conflict.
• Such declarations generate reciprocal treaty relations with Geneva Convention parties.

Agreements with Armed Opposition Groups

• Armed opposition groups in civil wars often sign ceasefire, peace, and amnesty agreements.
• Some scholars propose that civil war factions with de facto control over territories may have international agreement-making capacity.
• Recent jurisprudence rejects this view, considering such agreements as domestic.

Agreements with Indigenous Peoples

• Colonizing states historically signed treaties with indigenous peoples, initially recognized as legally binding under international law from the 17th–19th centuries.
• By the late 19th century, this view shifted, highlighted by the 1928 Island of Palmas arbitration ruling against the international legal nature of such treaties.
• Some courts treat these agreements as domestic contracts.
• Legal scholars argue that such treaties are sui generis, unique in nature.

Key Points on Treaty and Agreement Types

• Treaty Definition (VCLT): A written agreement between States governed by international law.
• Exceptions in Article 3: Legal force still applies to agreements with other subjects of international law.
• NLM Agreements: Can create treaty-like relations if recognized as representing people with self-determination rights.
• Armed Opposition Groups: Sign ceasefire, peace, and amnesty agreements, generally viewed as domestic.
• Indigenous Treaties: Historically treated as international but later considered domestic contracts; some view them as sui generis.

Discourse on Peace Agreements in International Law

• The inherent political character of peace processes shapes their form (written or unwritten) and content (e.g., ceasefires, political reforms).
• Non-starter issues, like the legal personality of non-state actors, non-recognition of a State's constitution, or demands for a ceasefire as a precondition, can lead to difficult negotiations.
• The Special Court for Sierra Leone's 2004 ruling on the Lomé Agreement between Sierra Leone and the Revolutionary United Front (RUF) exemplifies the legal ambiguity of agreements with non-state armed groups outside traditional treaty law.

Legal Status of Agreements with Non-State Actors

• Agreements with non-state signatories typically fall outside the strict treaty definition.
• International law increasingly recognizes non-state armed groups (NSAGs) as subjects of international law with agreement-making capacity, particularly under international humanitarian law.
• The International Law Commission (ILC) proposed including insurgent communities accorded recognition within "other subjects of international law," but this was excluded from the VCLT, leaving agreements with non-state actors in a legal gray area.

Subject-Object Dichotomy in Peace Agreements

• The traditional view is that only states have the legal capacity to conclude treaties, while non-state actors remain legal objects incapable of entering into binding international agreements.
• Bell challenges this by applying Rosalyn Higgins's conception of international law as a decision-making process.
• The shift remains insufficient to definitively determine if peace agreements with non-state groups carry binding international legal force.
• Peace agreements need a distinct legal form beyond traditional treaty law to have enforceable legal consequences.

Emergence of Lex Pacificatoria

• Given the VCLT's marginal applicability, negotiating parties seek creative legal approaches to overcome procedural hurdles and "non-starter" issues.
• This creates a dual legal regime with domestic legal principles (constitutional, legislative) and international ones (humanitarian, customary law) operating simultaneously.
• Parties signing substantive peace agreements undertake unilateral or mutual obligations with definitive legal consequences, enforceable even before the State party's judicial system.

Concept of Lex Pacificatoria

• Bell introduces lex pacificatoria as the law of peacemakers, a developing body of norms from peace processes that provides peace agreements with positive law status and obligations within traditional legal categories.
• Two mechanisms to legally formalize peace agreements:
  • Domestic legal framework: Integrating the agreement into the State's constitutional order, addressing the external and internal dimensions.
  • Legislative enactment: Legalizing unilateral commitments through domestic legislation

Constructive Ambiguity as a Legal Tool

• Bell identifies constructive ambiguity as a negotiation technique using deliberately vague language to allow consensus without resolving contentious issues.
• This enables conflicting parties to "sign in" without rigid commitments.
• However, cases involving transitional governance, constitutional powers, or institutional reforms require more precise language for legal clarity and enforceability.
• Areas of disagreement often become primary sites for constructive ambiguity.

Role of Judicial Bodies in Peace Processes

• Judicial bodies play a role by reviewing the legality of agreements, resolving constitutional challenges, and determining if agreements are enforceable under domestic law.
• Courts have a limited impact but can extend, develop, invalidate, or terminate an agreement when recognizing it as part of the legal framework.
• Judicial interpretation depends on whether courts classify an agreement as an international agreement or a municipal contract, determining applicable legal rules and interpretative tools.

Key Takeaways

• The political nature of peace processes shapes their form and content.
• The legal status of non-state actors are increasingly recognized as subjects of international law in humanitarian contexts.
• The marginal applicability of the VCLT encourages dual legal regimes.
• Lex Pacificatoria is a developing body of norms, while constructive ambiguity uses deliberately vague language for agreements.
• Judicial bodies can strengthen or undermine peace agreements based on legal classification.

Historical Context of the Philippine Peace Process

• For 40+ years, the Philippine government has engaged in peace negotiations with armed opposition groups.
• The nature and content of peace instruments are shaped by immediate concerns, political context, and third-party facilitation.

Key Realizations

• Third-party facilitation sustains negotiations, and comparative experiences reflect patterns with uniformity.

Stage-Function Classification of Peace Instruments

• The Philippine peace process reveals stage-function classification:
  • Pre-negotiation: Establishes parameters, declarations of intent, terms of reference, mediators.
  • Ceasefire: Temporary or indefinite cessation with monitoring mechanisms.
  • Substantive/Framework: Addresses core conflict issues, forming the legal and political foundation.
  • Implementation: Establishes operational framework, monitoring, verification, and enforcement.
• The Philippine peace process is often disrupted by socio-political events, armed incidents, and judicial challenges.

Role of Third-Party Facilitation

• Third-party facilitation mediates and ensures neutrality, transparency, and logistical support.
• Third-party actors include foreign governments, international organizations, and NGOs.

Impacts of Third-Party Facilitation

• It enhances credibility, prevents stalemates, and fosters confidence-building measures.

Constitutional and Judicial Challenges

• The Philippine peace process encounters constitutional litigation reflecting legal complexities that involve the constitutional validity and judicial scrutiny of peace instruments.
• Courts can legitimize or invalidate agreements, creating legal uncertainty.
• The Memorandum of Agreement on Ancestral Domain (MOA-AD) was declared unconstitutional in 2008, highlighting the significant role of judicial bodies.

Lessons from the Philippine Peace Process

• The Philippine experience reveals that peace processes are susceptible to socio-political disruptions and legal hurdles, but third-party facilitation, creative legal mechanisms, and judicial oversight are essential.

Key Takeaways for the Philippine Peace Process

• Peace process stages are pre-negotiation, ceasefire, substantive agreements, and implementation mechanisms.
• Third-party facilitation enhances neutrality and credibility.
• Constitutional challenges often involve the Supreme Court, and are influenced by political events and legal & political interplay.

Moro Front Origins & Context

• The Moro conflict in Mindanao reflects a history dating to Spanish colonial times.
• The arrival of Christianity, forced integration, and animosity between Christian settlers & Moro groups intensified due to economic marginalization, historical prejudices, and widespread dissatisfaction, fueling secessionist movements.

Key Drivers of the Conflict

• Colonial-era discrimination, marginalization, exclusion, and secessionist aspirations drove the conflict.

Emergence of the MNLF & MILF

• Moro National Liberation Front (MNLF):
  • The first major Moro insurgent group, was founded in 1969, organized on Pulau Pangkor, Malaysia, with links to Darul Islam.
  • Nur Misuari became the group chairman and leader, it followed a secular-nationalist ideology focused on political independence.
• Muslim Independence Movement (MIM)
  • This organization also sought self-determination for the Moro people.

Key Milestone

• In 1976, entered peace talks, leading to the Tripoli Agreement, recognizing autonomy and establishing a ceasefire.
• However, the Philippine government’s failure to implement the Tripoli Agreement led to Moro dissatisfaction.

Moro Islamic Liberation Front (MILF)

• Emerged as a splinter group from the MNLF in the 1970s due to internal leadership conflicts.
• Hashim Salamat formed the New MNLF after failing to take it over, renaming it the Moro Islamic Liberation Front (MILF) in 1984 to emphasize its Islamic ideology and advocate radical Islamic revivalism.
• The MILF became more Islamist, committed to secessionist goals.

Key Milestone

• The MILF adopted a secessionist stance, intensified armed resistance, and became more reluctant to engage in peace talks but played a pivotal role in subsequent negotiations, including the Comprehensive Agreement on the Bangsamoro (CAB) in 2014.

Comparative Analysis of MNLF & MILF

Key Differences

• The MILF held an islamic orientation, whereas the MNLF pushed a more secular agenda
• The MNLF engaged in negotiations more readily, but the MILF remained more militant
• The tactics employed were also different

MNLF Impact

• MNLF negotiated with the government, leading to the Tripoli Agreement in 1976 that established the basis for future peace negotiations and the creation of autonomous regions.
• Final Peace Agreement (FPA) in 1996, under President Fidel V. Ramos, led to the establishment of the Autonomous Region in Muslim Mindanao (ARMM).

MILF Impact

• MILF eventually entered negotiations, signing the Comprehensive Agreement on the Bangsamoro (CAB) in 2014, which provided the foundation for the Bangsamoro Organic Law (BOL) and led to the establishment of the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM), replacing the ARMM.

Key Takeaways

• The Moro conflict dates back to Spanish colonization.
• The MNLF (founded in 1969) was secular-nationalist, led by Nur Misuari, and the MILF (split in 1984) was Islamist, led by Hashim Salamat.
• MNLF's Tripoli Agreement (1976) led to the Final Peace Agreement (1996), and MILF's Comprehensive Agreement on the Bangsamoro (2014) led to the Bangsamoro Organic Law (2018).

Impact on Peace

• MILF's CAB resulted in the BARMM, while MNLF's agreements laid the foundation but were less effective.

Foundational Agreements

• These agreements laid the foundation for peace talks between the Government of the Republic of the Philippines (GRP) and the MILF.

Memorizing Key Agreements

• Memorizing key agreements from the Moro Islamic Liberation Front (MILF) is outlined, starting with the foundational agreements of 1997–2001.
  • 1997 - Agreement on General Cessation of Hostilities
    • Purpose: Formalized commitment to halt hostilities and continue formal peace talks.

1999 - Agreement: Rules / Procedures for Formal Peace Talks

  -  Key Provisions: Guidance for negotiations, media coverage, and confidentiality.

2000 - Agreement on Safety & Security Guarantees

  -  Purpose: Immunity for MILF members involved in peace talks, except for common crimes.

2001 – Tripoli Agreement Of Peace

  -  Key Aspects: Security, rehabilitation, ancestral domain discussions, committee activation.

2008 - Memorandum of Agreement on Ancestral Domain (MOA-AD)

• Established the Bangsamoro Judicial Entity (BJE) with authority over ancestral domain/lands. Included both alienable and non-alienable lands.Declared unconstitutional by the Supreme Court

2009 - Framework Agreement on the International Contact Group (ICG)

 -  Purpose: International engagement and oversight with interested countries (OIC, EU) and accredited NGOs.

2009 – Agreement on Civilian Protection Component of the Imt

  - Expanded mandate to include civilian protection, prohibited intentional targeting of non-combatants.

Points And The Bangsamoro

• Framework: Decision points and frameworks from (2012–2014). - New Autonomous Political Entity (NPE) Creation: wealth-sharing mechanisms. - Expansion of Shari'ah Court Jurisdiction and third-party monitoring mechanismsCreation of wealth-sharing mechanisms

New Framework Principles

  - Established Bangsamoro as the new autonomous political entity, and would replace region of Autonomony of Muslim Mindanoo

BBL was also put into effect.

Arrange The Facts

 - Transitional arrangements and modalities that were in effect.

Transitional Commision Established

 - BTA Was formed and other 3rd monitoring groups were created.

Reserve Of Governement - Reserved between the Governments and mechanisms established.

CAB Agreements

• Consolidated prior CAB (Comprehensive Agreement on the Bangsamoro)
• Acknowledged the international Community Role

Methods To Memorize

• Acronyms were created, flashcards and mental cues to memorize dates, facts and figures.