Pitfalls and Pipelines - Philippine Indigenous Peoples Links

294 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
legal interpretation, however, should include transnational corporations,
given the prominence that these have currently acquired in relation to
human rights (or more precisely, in relation to the violation of human
rights).
Article 20 of the Declaration reiterates the responsibility of states in terms
of human rights, impeding their support or promotion of activities of
individuals, groups of individuals, institutions or NGOs, which in any way
contradict the Charter of the United Nations. This opens an indirect path,
or negative foundation, given that although the main role is not given to
transnational corporations, it suggests the intimate triangulation in which
all of the activities of transnational corporations are included and made
possible: the close and dialectic relationship between the investing state,
the host state and the transnational corporation. Thus, the path that allows
states to function as enabling platforms for the actions of transnational
corporations, whenever this translates into a violation of human rights, is
closed. This also settles the concept of the subsidiary responsibility of the
state for the actions of transnational corporations, which act in its name—
developing productive activities of great relevance for state interest—and
under the umbrella of its jurisdiction. This is no more than a extension of
the obligation of protection which states hold.
The Declaration, therefore, gives us an important clue to enable the
consideration of transnational corporations as subjects of responsibilities;
it also offers indirect paths, through the special implication and
responsibility that states have to prevent violations on the part of
transnational corporations, thus affecting the very core of Transnational
Commercial Law.
The United Nations Office of the High Commissioner for Human
Rights (OHCHR) expresses a similar view in the “Report of the United
Nations High Commissioner on Human Rights on the responsibilities of
transnational corporations and related business enterprises with regard to
human rights.” 64
That report tries to untangle these complex issues, establishing
mechanisms in order to detect the space to denounce violations of human
rights, which until now, have not been considered by law. For this to
happen there has to be a transition from the concept of “responsibilities” to
one of “concrete legal obligations.” One attempt at this is the proposal of
the extraterritorial application of ILO Convention 169 which we have been
investigating. The OHCHR has tried to explore further this very argument,
to establish the need to assess, in a separate and autonomous manner,