Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.7: International Processes and Complaints Mechanisms
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based primarily on the progressive nature of human rights, the nature of
the Convention itself, and the commitments that the Spanish state has
made.
Introduction
On 15 February 2007, the Spanish state officially ratified ILO Convention
No 169 on the rights of indigenous and tribal peoples, 60 which is to date
the main international instrument for indigenous rights with binding
obligations for those states which have ratified it.
The ratification of this Convention opens important and complex debates
around what ratification really means for a state such as the Spanish
state, with no indigenous peoples within its borders; 61 in other words,
within the scope of its territorial sovereignty and immediate jurisdiction,
where the state exerts effective control of its territories and peoples.
The fact that indigenous peoples are the fundamental subject and object
of ILO Convention 169 makes us question whether the Convention
implies any obligation on the Spanish state, as it is a country that lacks
indigenous peoples within its territorial borders; or, does the Convention,
due to these circumstances, only possess a moral value for the Spanish
state, which could be expressed in the development of practices and
policies of solidarity with indigenous peoples and other states, within
whose territorial boundaries indigenous peoples can be found?
In this sense, the clearest expression of solidarity would be through
policies of development cooperation with countries who have an
indigenous population, and through any other foreign policy related to
issues affecting these peoples. If this were so, the incidence, intervention
and presence of Spanish multinational companies in indigenous territories
could not be controlled or regulated by the guarantees of protection of
the rights of indigenous peoples granted by the Convention, leaving the
activities of these companies uncontrolled. On the other hand, we need to
bear in mind the legal possibilities, which the Convention opens for other
countries that have indigenous peoples within their territory.
The thesis and fundamental argument the author wishes to defend in
this essay is that the Convention does establish legal obligations for
the Spanish state as long as it applies to an extraterritorial application
of the Convention. The argument is that content and legal obligations
established by the Convention are binding on the Spanish state. One
of the ways to grant judicial validity to the contents of the Convention