Pitfalls and Pipelines - Philippine Indigenous Peoples Links

302 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
order to correctly fulfill the value of justice, an extraterritorial application of
the Convention becomes necessary, enabled, as we have seen, through
an extensive interpretation of the regulations within Spanish domestic law.
The content of Convention 169, through Articles 2, 3, 4 and 34, links
up with the already developed requirements of the Judiciary Act.
Consequently, there is a complementarity established within Spanish
domestic law and international treaties. Article 34 of the Convention works
as an interpretative criteria to understand the integration of the Convention
within domestic law, supporting itself in the possibilities granted by
universal justice. This article demands that the measures adopted by
states to make the Convention effective “should be established with
flexibility, taking into consideration the conditions of the country.” This
ratifies the thesis that the author has been setting out in order to support
and validate the extraterritorial application of the Convention: on the one
hand, the demand for an open and flexible interpretation, enabled and
reinforced by the principle pro homine; on the other hand, the analysis of
rights based on the contexts, which concern and implicate states. From
this point, extraterritoriality is applied as the most important medium
through which the demands of Article 34 can be met.
Article 2.1 of the Convention states that governments “shall have
the responsibility for developing, with the participation of the peoples
concerned, co-ordinated and systematic action to protect the rights of
these peoples and to guarantee respect for their integrity.” As part of this
strategy to comply with the mandate of Article 2.1, extraterritoriality is a
necessary mechanism to achieve better and more effective protection and
guarantee of indigenous rights.
Article 3.1 states: “Indigenous and tribal peoples shall enjoy the full
measure of human rights and fundamental freedoms without hindrance
or discrimination.” From the point of view adopted throughout this essay,
extraterritoriality is understood as an anti-discriminatory element in
relation to the totality of indigenous peoples. In other words, it is used as
a necessary instrument to limit the impacts of the actions of the Spanish
corporations in indigenous territories, a matter which, if not addressed,
could be interpreted as a discriminatory element which violates indigenous
rights and favours the business interests of corporations.
The active implication of the Spanish state in the limitation and reduction
of any form or expression of discrimination is a requirement arising from
the Convention. This is even more apparent in Article 3.2: “No form
of force or coercion shall be used in violation of the human rights and
fundamental freedoms of the peoples concerned, including the rights