Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.7: International Processes and Complaints Mechanisms
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which justify the comprehension of extraterritoriality: a) the nationality of
the active perpetrator of the offence (23.2); b) the protection of national
interests (23.3); c) the achievement of universal justice (23.4). The first
obligation locates the personal principle. In other words, it determines
who is the active perpetrator of the offence, when it comes to the
complementary principle of territoriality. The second is the real principle
or principle of protection, which relates to the interests to protect. The
third narrates the principle of universal justice, justified by the principle
of universal solidarity, which is embedded within the doctrine of human
rights. 69
These obligations, restrictive and strictly valued in our Judiciary Act, can
offer sufficient motives to support the extraterritoriality of Convention
169, as we will see later on in this essay. It would however demand an
extensive and open interpretation in which certain types of offences
can be identified with and as violations of human rights in indigenous
territories; in other words, we need to redirect the extraterritoriality of
criminal law, dragging it to our own area of interest, to interpret the
violations of the human rights contained within the Convention, hence
giving foundations to the criteria of extraterritoriality. This would imply
redirecting the concept of universal justice, such as is stipulated in
the Judiciary Act, to go beyond the rigid valuation established by the
Judiciary Act, through an open and additional foundation with the rights
of indigenous peoples contained within the Convention, ratified by the
Spanish state.
To achieve these aims, it will be necessary to widen the concept of
jurisdiction as applied in Spanish law, to allow us, in an unequivocal and
objective way, an extraterritorial interpretation of the law, in general, and of
the legislation focused on human rights, in particular. 70 The determination
of jurisdiction in terms of the spatial connection between a state and its
territory is now a longstanding legal tradition: it is that vital space which
corresponds to a state, enclosed by rigidly established sovereign borders.
Therefore, jurisdiction means sovereign and effective control of national
territory. This is the sense used by the International Court of Justice in
many decisions where extraterritoriality has been implied, such as in the
case of Nicaragua. Or that which international humanitarian law has been
using to express a relation of dependence, of effective control of territory,
of some parties above others. Or that are established by many human
rights treaties and agreements, where the term jurisdiction denotes mainly
the power that the state exerts over its territory and inhabitants in a way
that, only when the state assumes this power of control, is it plausible to