Pitfalls and Pipelines - Philippine Indigenous Peoples Links

312 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
76
The sentence of the Constitutional Tribunal -STC 237/2005, imposed
against the STS on the 2 February 2003, is where they faced up to, for
the first time, in a direct and exhaustive manner, the question of “universal
jurisdiction” in the Spanish state. The Constitutional Tribunal
establishes a series of general criteria to proceed with the application
of the principle of universal jurisdiction in connection with the offence
of genocide. It establishes that the application of this principle of
universal jurisdiction is conditioned to the existence and location of
“links of connections,” which can be: the presence of the guilty party, of
a genocide offence, in Spanish territory; the Spanish nationality of the
victims; or the existence of another direct connection with international
interests. In relation to Spanish multinational companies in indigenous
territories, the point of direct connection can be found in the Spanish
nationality of the companies which operate in these countries; as well
as the general interests of the Spanish state, which it can demonstrate
towards said territories. These interests are developed and executed
in a privileged manner through the actions of Spanish companies.
Having demonstrated the existence of some “point of connection,” the
Constitutional Tribunal proceeds to establish an absolute consideration
of the principle of universal jurisdiction, with the only limit being if the
perpetrator of the offence hasn’t been absolved, pardoned of punished
abroad for the same offence. All of this constitutes an invaluable legal
argument for an extraterritorial application of the Convention.
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As has been incisively established by Clapham “the International
Court of Justice asserted in the Barcelona traction case that certain
basic human rights give rise to international obligations owed by
States to all other States which the Court characterized as erga omnes
obligations (…) The erga omnes concept explains which human rights
violations are capable of giving rise to a separate right for a state to
complain about the violating state’s breaches of its obligations concerning
these basic rights.” See A. Clapham 2006, pp. 96-97. In a complementary
sense, Professor Cançado Trindade has established that erga
omnes obligations refer to and define all entities and individuals, including
businesses and commercial societies. See Inter-American Court
of Human Rights, Sarayaku v Ecuador, 17 June 2005, Opinion of the
Judge Cançado Trindade, paragraph 20. Similar to the Inter-American
Court of Human Rights, in his Advisory Opinion 18, he establishes: “
(…) the States, being, or not, part of a determined international treaty,
are obliged to protect those rights of equality and non-discrimination
and that this obligation has erga omnes effects, not only in terms of State,
but also in terms of third and private parties” (our own italics).
78
DDPI, Art. 42.
79
ECEPI 2006, pp. 19-20.
80
Ibid., p. 20.
81
Ibid., pp. 23-24.