Pitfalls and Pipelines - Philippine Indigenous Peoples Links

290 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
is by appealing for its extraterritorial application. This means that the
Convention would have legal obligations outside of the Spanish state
borders, for all those Spanish actors—although more specifically Spanish
multinational companies—who have some level of activity and intervention
within indigenous territories. With the strategy of extraterritorial application
of the Convention, the scope of responsibilities in terms of human rights
could be widened to include other (Spanish) actors, separate from the
state, who, although not acting within Spanish territory, do so in the
framework of the possibilities offered by the globalization of capital, in
other states and territories, representing and supported by the state itself.
International Law with regard to the responsibility of Multinational
Companies (Spanish multinationals)
It is still difficult today to talk about and justify the fact that transnational
corporations are considered the subject of rights and obligations and, as
a result, responsible for possible violations of human rights. The liability
of transnational corporations as a subject who infringe upon these rights
is a legal argument, which has not yet been established. The practical
application of the criminal responsibilities of corporate entities still
generates a lot of problems. These interpretations still require important
theoretical elaborations which would allow for a coherent development
on the issue, in terms of international law, as much as criminal law. If
the attribution of criminal responsibility is difficult and arduous, the level
of responsibility as a consequence of the violation of human rights in
indigenous territories requires even more qualitative foundations.
The aim of this essay is a legal argument, not an ethical one, in the
suggestions it makes and the results it searches for. It aims, therefore,
to discuss legal responsibilities, the legal obligation of those who are
bound—third parties, multinational companies and states—by the
proposal it puts forward: the extraterritorial application of ILO Convention
169. In this sense, it intentionally escapes from the wide spectrum of
ethical measures that are currently being proposed on this issue.
The motives behind this legal aim are various. First, the processes of
self-regulation by multinational companies have been proposed as
measures of replacement, not as complementary measures, to the
national and international regulations which already exist. In other
words, while multinational companies are voluntarily regulating their
areas of action and intervention, this runs in parallel to the existing legal
mechanisms, at different levels, which control the actions of actors
and subjects regarding human rights. This voluntary, unilateral and