A Rights-Based Approach to the GRP-MILF & GRP-NDFP Peace Talks
by Soliman M. Santos, Jr., Peace Fellow, Gaston Z. Ortigas Peace Institute, Quezon City, 11 April 2005
The August 2004 National Defense College of the Philippines (NDCP) Master of National Security Administration (MNSA) thesis of Commission on Human Rights (CHR) Region IX (Western Mindanao) Director Atty. Jose Manuel S. Mamauag entitled Rights-Based Approach (RBA) as a Tool in Evaluating the Socio-Political Dimensions of the Peace Process with the MILF gives rise to the idea that the RBA can be used not only as a tool in evaluating the socio-economic dimensions of the peace negotiations between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) but also as a framework for the whole peace process and a peace settlement, including other dimensions (e.g. economic and cultural) and other peace negotiations, particularly that with the National Democratic Front of the Philippines (NDFP). The RBA has started to be used for development and for governance; why not for peace?
The thesis shows the viability of the RBA as applied to the socio-political dimensions of the peace process with the MILF like security, relief and rehabilitation, development, right of self-determination, and territorial integrity. In particular, the thesis used the RBA to integrate and converge human rights (HR) normative content, its standards, principles and levels of state obligations as a “common platform” for both parties in dealing with these dimensions. Having a common platform presumably enhances the prospects of a negotiated political settlement.
Rights-Based Approach (RBA) in Brief
One might describe this as an approach-in-progress where there is no single, universally agreed RBA, although there may be an emerging consensus on the basic constituent elements. Essentially, a RBA integrates the norms, standards and principles of the international HR system into the plans, policies and processes of development and governance. It includes the following elements: express linkage to rights, accountability, empowerment, participation, and non-discrimination and attention to vulnerable groups.
RBA has already been applied in the various aspects of governance and development in the Philippines, e.g. by the CHR, through a process that:
- identifies the issues and analyzes their root causes
- identifies the claimholders and defines how they are specifically affected by the issues in terms of their HR
- defines the duty holders and the roles each has played in bringing about the issues and their root causes
- defines the specific rights involved
- defines the nature of state obligations that are concerned
- defines the standards against which performance of the duty holders can be gauged
- defines the necessary initiatives that are required to address the issues, and
- establishes the measures by which the effectives of such initiatives can be evaluated
There are 14 HR principles that guide the substance and process of development, outlined as follows:
1. HR principles that direct the substance of development: Attention to vulnerable groups, Indivisibility, Interdependence and Inter-relatedness, and Universality.
2. HR principles that prescribe the process of development: Accountability, Good Governance, Independence of the Judiciary, Legislative Capacity, People’s Participation, and Transparency.
3. HR principles that govern both process and substance of development: Empowerment, Equality, Equity, and Non-Discrimination.
The core HR instruments which provide the key HR norms and standards are six treaties: the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on Elimination of Racial Discrimination (CERD), the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention Against Torture (CAT). Of course, there are many more international HR instruments, and not only on the high level of treaties.
These various instruments provide the normative content (specific standards or actual meaning) of such HR as the following: Right to life, Equality and Non-Discrimination, Right to Participate in Government, Freedoms of Opinion and Expression, Freedom of Movement, Right of Peaceful Assembly and Association, Right to Social Security, Right to Work, Right to Health, Right to Food, Right to Housing, Right to Education, and Right of Reparation.
As for the levels of state obligations in relation to HR, there are (1) the Obligation to Respect i.e. not directly violate the HR of its citizens; (2) the Obligation to Protect its citizens from HR violations committed by others; and (3) the Obligation to Fulfill i.e. facilitate and promote the full exercise of HR by its citizens, and directly provide such HR in exceptional circumstances.
The value added of the RBA in relation to other approaches to development and governance consists in: Enhanced accountability; Higher levels of empowerment, ownership and participation; Greater normative clarity and detail; Easier consensus, increased transparency and less “political baggage;” More complete and rational development framework; Integrated safeguards against unintentional harm by development projects; More effective and complete analysis; and More authoritative basis for advocacy and for claims on resources.
GRP-MILF Peace Talks & RBA
There is fertile ground in these talks for the availment of an RBA to peace. This is because HR is already very much part of the terms of reference (TOR) of these talks, as indicated by the following:
1. General Framework of Agreement of Intent dated 27 August 1998, Article II: “The parties affirm their commitment to protect and respect human rights in accordance with the principles set forth in the Charter of the United Nations, and the Universal Declaration of Human Rights.”
2. Tripoli Peace Agreement dated 22 June 2001, section B, paragraph 1: “The observance of international humanitarian law and respect for internationally recognized human rights instruments and the protection of evacuees and displaced persons in the conduct of their relations reinforce the Bangsamoro people’s fundamental right to determine their own future and political status.”
3. Implementing Guidelines on the Humanitarian, Rehabilitation and Development Aspects dated 7 May 2002, Article IV, paragraph 1: “This Agreement will safeguard the observance of international humanitarian laws, respect for internationally recognized human rights and fundamental freedoms for all persons within Mindanao. The GRP will secure to all persons within its jurisdiction or territory the highest level of recognized human rights and fundamental freedoms. The GRP shall grant recognized accredited human rights agencies and organizations full access to monitor the human rights situation in conflict-affected areas.”
Now, the GRP-MILF peace talks are about to start tackling the first major substantive agenda matter of ancestral domain, after which the talks are expected to tackle “the very political solution to the Moro problem.” The former is to be tackled in four components: Concept, Territory, Governance, and Resources. Governance can be seen as already part of the political solution. The latter essentially involves the form and substance of the Bangsamoro people’s right of self-determination (RSD).
Crucial for the negotiations on ancestral domain is its very concept because of the parties’ divergent frameworks of reference. One “common platform” in bridging these divergent frameworks is international HR law relevant to ancestral domain and its various dimensions, particularly as relates to indigenous peoples’ rights. The MILF already includes “international law and conventions” among its TOR for ancestral domain. The GRP tends to hew closely to its own Indigenous Peoples’ Rights Act (IPRA) of 1997 as its TOR. But this does not preclude the GRP from referring to international law because this is part of the Philippine legal system under the 1987 Constitution. International law becomes part of the law of the land through treaties ratified by the Philippines and through the incorporation of generally accepted principles of international law. Several international legal instruments which may be particularly helpful in addressing ancestral domain issues are:
- The Universal Declaration on Indigenous Rights of 1988, specifically Part III which deals with land and other natural resources
- the International Labor Organization (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989, specifically Part II (Articles 13-19) on Land
- the Draft United Nations Declaration on the Rights of Indigenous Peoples, prepared by the Working Group on Indigenous Populations under the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities which adopted it by its resolution 1994/45 on 26 August 1994
In the overall solution of the Bangsamoro problem, we have said that RSD may be a more important framework than ancestral domain. Relevant therefore is some international legal thinking on a RBA to RSD. What follows are excerpts from an international law journal article, which might be helpful for the GRP-MILF peace negotiations:
The human rights approach to the right of self-determination recognizes that the right is a human right but is not an absolute human right. This approach relies on the general legal rules developed within the international human rights law framework to enable the limitations on the right to be discerned and elaborated. By interpreting the right in the context of current State practice and current international standards, full account can be given to the development of the right over time and to its broad range of possible exercises, in contrast to the restrictive “territorial” approach which limits its exercise to secession or independence. Use can also be made of the broad and flexible rules concerning who is a “victim” able to bring a claim for violation of a human right to give a flexible definition of “peoples,” which avoids the barrenness and rigidity of the “peoples” approach.
The approach provides a coherent and consistent body of general legal rules by relying on the framework of international human rights law. The right of self-determination does have limitation, both to protect the rights of others [e.g. “internal minorities”] and to protect the general interests of society [e.g. territorial integrity], especially the need to maintain international peace and security. But those limitations are applicable only in certain circumstances, such as where internal self-determination has already occurred, and where there is a pressing need for the limitations in the society concerned.
Thus the human rights approach to the right of self-determination creates a framework to balance competing rights and interests and seeks to provide legal rules to deal with disputes. Once this legal process has been completed then the relevant political and moral forces will be able to act on a clear and coherent legal ⁰osition. The legal decisions reached using this international human rights law framework are capable of gaining general moral and political support. This support should enable peaceful resolution of most disputes involving the right of self-determination.
GRP-NDFP Peace Talks & RBA
When it comes to these talks, there is likewise fertile ground for the availment of an RBA to peace. To start with the parties already have as their first substantive agreement, the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) of 16 March 1998. Among its provisions are the following:
1. Part II, Article 2. “The objectives of this Agreement are: … and (d) to pave the way for comprehensive agreements on economic, social and political reforms that will ensure the attainment of a just and lasting peace.” (italics supplied)
2. Part II, Article 3: “The Parties shall uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights. In complying with such obligation due consideration shall be accorded to the respective political principles and circumstances of the Parties.” (italics supplied)
3. Part II, Article 4: “It is understood that the universally applicable principles and standards of human rights and of international humanitarian law contemplated in this agreement include those embodied in the instruments signed by the Philippines and deemed to be mutually applicable to and acceptable by both parties.” (italics supplied)
4. Part III, Article 1: “In the exercise of their inherent rights, the Parties shall adhere to and be bound by the principles and standards embodied in international instruments on human rights.” (italics supplied)
CARHRIHL’s reference to “principles and standards of human rights” is one basis for the possibility of applying the RBA in this peace process. Note that while Part II, Article 4 makes reference to “the instruments signed by the Philippines and deemed to be mutually applicable to and acceptable by both parties,” Part III, Article 1 makes reference to “international instruments on human rights” without such a qualification and so covers all international HR instruments.
CARHRIHL’s reference to the “full scope of human rights, including civil, political, economic, social and cultural rights” is certainly in accordance with the HR principles of Indivisibility, Interdependence and Inter-relatedness, and Universality. Most interestingly, when co-related with the fourth objective of CARHRIHL to “pave the way for comprehensive agreements on economic, social and political reforms,” then we can also speak of a RBA to reforms.
The main mode to work for those reforms in the GRP-NDFP peace process is to sequentially negotiate comprehensive agreements on socio-economic reforms and then on political and constitutional reforms, pursuant to the Hague Joint Declaration of the parties. A supplemental mode, especially in case of prolonged impasses in the peace negotiations such as currently, is to maximize what the parties already have in the CARHRIHL for reforms. Not only does CARHRIHL have a general provision seeking to “uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights,” it also has specific provisions on such rights. For example, specific provisions on socio-economic rights in Part III are on:
1. right to work and related rights (Article 2, para. 19; and Art. 11)
2. right to education (Art. 2, para. 20)
3. right to health (Art. 2, para. 20)
4. equal rights of women (Art. 2, para. 23)
5. rights of children (Art. 2, para. 24)
6. rights of the disabled (Art. 2, para. 24)
7. rights of minority communities (Art. 2, para. 25)
8. rights of migrant workers (Art. 11)
9. rights of peasants to land (Art. 12)
10. ancestral rights of indigenous peoples (Art. 12)
11. rights against racial and ethnic discrimination (Art. 12)
12. rights of poor fisherfolk (Art. 12)
There need not be new agreements or even implementing guidelines on these rights. They just need to be implemented or enforced. And in this, the RBA can help with its norms, standards and principles to flesh out or support these rights.
It will be noted too that a number of the provisions pertain to certain disadvantaged sectors. Implementation would be tipped in their favor by the application of the HR principles of Attention to vulnerable groups and Equity. These principles allow for a preferential option for the poor.
Thus far, we have dealt with the substantive agenda of the peace negotiations with the NDFP and with the MILF. We must not forget the process aspects of these negotiations. And when it comes to process, this can be enhanced by the conscious application of such HR principles as People’s Participation, Transparency and Accountability.
There must be some merit to this RBA to peace. After all, “human rights are the foundation for peace, security and development.”
