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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