Pitfalls and Pipelines - Philippine Indigenous Peoples Links

300 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
Finally, the interpretation of the pro homine principle, from an open and
contextual perspective, takes us, furthermore, to a reinterpretation of
the contents of Spanish domestic law and, more specifically, the Act of
Parliament Governing the Judiciary (Judiciary Act), to be able to adjust
our proposal and so that it can come to produce satisfactory results. The
Spanish state must take all necessary measures to also prevent violations
of human rights committed by non-state actors, of those which the state
is responsible in the first and last instance. 75 It also concerns the breaking
down of the formal rigidity of the Judiciary Act, increasing the enabling
interpretations, which would allow us to operate under the umbrella term
of universal justice to proceed with an extraterritorial application of the
Convention. Let us clarify.
The Judiciary Act, in Article 23.4, picks up the principle of universal justice
in terms of constitutional development of the value of justice recognized
within the Spanish Constitution in Article 1.1. This abstract recognition
of the value of “justice” is developed and concretely specified by the
Judiciary Act in this article, through the recognition of “universal justice,”
which implies the necessary extraterritorial application of the law. In
other words, the possibility of prosecuting offences, recognized as such
by Spanish domestic law, outside of Spanish borders. With this it is
implicitly recognized that the development of standards in International
Human Rights Law complements Spanish domestic legislation and would
fit, therefore, with an extraterritorial application of this legislation as
demanded by the constitutional value of justice. 76
In this sense, and as a counterpart for international human rights law,
we have available ILO Convention 169, recently ratified by the Spanish
state. The Convention, from the moment of its ratification, has legal
value and internally binds the Spanish state in terms of the contents of
the Convention. The controversial issue is the extent to which it should
be internally applied. In this sense the strategy of an extraterritorial
application of the Convention is fundamental so as not to produce a
vacuum in the protection of the rights of indigenous peoples, as a result
of actions by Spanish non-state actors in indigenous territories. The
Spanish state is responsible, therefore, for complying with the obligations
of the Convention, which demands active intervention in order to meet the
obligations to respect, protect, comply with and guarantee its contents,
producing, furthermore, erga omnes obligations. 77 In order to achieve the
aforementioned aim, the extraterritorial application of the Convention in
relation to the actions of Spanish transnational corporations is undeniably
necessary.