Pitfalls and Pipelines - Philippine Indigenous Peoples Links

296 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
To be able to comply with the demands proposed by this new conceptual
framework, however, a differentiated and autonomous regime of
responsibilities was necessary, which enables a better distinction of
the subjects responsible for violating rights, as well as the material
dimensions of these infringements. In this sense, he talked about the
obligation to protect, which states have when facing violations of human
rights which come from third parties, among which commercial companies
are included. He also talked about the corporate responsibility that
transnational corporations and other commercial companies have in terms
of human rights. And, finally, he recognized the necessity to facilitate and
promote access to more effective remedy for violations of rights, taking
into account the different responsibilities of the implicated subjects and the
statutes of their implication.
Several conclusions can be derived for our main purpose: the
extraterritorial application of the Convention when Spanish transnational
corporations are suspect of human rights violations. Firstly, that the report
begins to recognize the responsibility of transnational corporations as a
result of their actions, establishing, therefore, a content for the concept of
corporate responsibility. Secondly, the necessity of fixing a mechanism,
a methodology, to break down responsibilities and to establish spheres
of responsibility, both autonomous and differentiated, according to its
subjects and actions. All this provides clear arguments to understand the
responsibilities of transnational corporations for human rights violations,
thus justifying the tactical utilization of the extraterritorial applicability of
ILO Convention 169 in the case of Spain.
Extraterritoriality in the Spanish legal framework: an analysis of the
postulates of the Judiciary Act
An important area of difficulties is related to the nature of extraterritoriality
itself. The conflict is already planted within Spanish law when we
interrogate the “extraterritoriality of criminal law.” 68 The problem there
resides within the reasonableness of the obligations, which allow the
attribution of criminal competence to a national jurisdictional entity. What a
foundation in law demands, however, is that these reasons are in keeping
with the Spanish jurisdiction for criminal offences committed outside
of its territory and sovereignty. The Spanish state guides itself by the
principle of nationality, establishing an enduring link between its nationals
and its laws, wherever they are, for the prolongation of the protection of
the state over its nationals. From here, the Act of Parliament Governing
the Judiciary (Judiciary Act), in Article 23, establishes three obligations