Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.7: International Processes and Complaints Mechanisms
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indigenous peoples. In this sense, an evolutionary and open interpretation
of the rights of indigenous peoples, and of the contexts in which they are
realized in a practical and legal sense—consider the situation of a state
such as the Spanish state, which does not have indigenous peoples
within its borders—takes us, through the demands of pro homine, to an
extraterritorial application of the Convention, with the aim of avoiding
it to be meaningless or not implemented in its fundamental content
and in the recognition of the most basic rights which the Convention
contains. The pro homine principle helps us to give tangible content to the
Convention in the face of an absence of material subject and object in the
territory of the Spanish state, that is to say, in the face of the absence of
indigenous peoples. The necessary mediation, instrumental for making
the fundamental elements of the Convention effective, is extraterritoriality.
Extraterritoriality works, furthermore, as a procedure, as a formal element
necessary for the application of the material content of the Convention.
The pro homine principle allows us to infer some more elements to
support the proposal for an extraterritorial application of the Convention.
This principle helps us to focus on and situate, in the center of the
analysis, those actors which today prove enormously problematic in
terms of the rights of indigenous peoples. Conducting an analysis of
indigenous territorial contexts and rights, we can deduce that transnational
corporations emerge as symptomatically problematic actors for the
protection, preservation and development of indigenous rights. This
diagnosis is much more pertinent today than when the Convention was
first drawn up. As a result, propelled by the demands of the pro homine
principle, a focus on rights, from an indigenous perspective, such as
that assumed in the Convention, would take us to an update of the
rights and obligations in relation to these peoples. This implies, logically,
the reconsideration of the implicated actors and of the obligations and
responsibilities, which are incumbent on them. Therefore, in the face
of the ongoing major violations of rights in indigenous territories, 74 and
applying the pro homine principle, it is a demand that non-state actors are
introduced to the nominee list of subjects who are considered responsible
for actions resulting in an infringement of the rights of indigenous persons
and communities. There has been a widening of real demands in the
field of human rights in relation to indigenous peoples because of the
evolutionary and open interpretation of human rights law. Among them is
the consideration of transnational corporations as subjects obliged and
affected by the rights of indigenous peoples.