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P IP IEL W HL PN A I A D N S EYR VE OCI T EI W

V U 1N 1 OL ME O. OCT E 2 1 OB R 0 1

PHILIPPINE LAW AND SOCIETY REVIEW

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EDITORIAL BOARD EDITORIAL BOARD


Editor in Chief Professor Florin T. Hilbay UP College of Law

Board of Editors President Francisco Nemenzo, University of the Philippines Dean Pacifico A. Agabin, UP College of Law Dean Raul C. Pangalangan, UP College of Law Dean Emmanuel De Dios, UP School of Economics Dr. Sylvia Estrada Claudio, UP Center for Womens Studies Dean Antonio G.M. La Via, Ateneo School of Government

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note from editor note from the editor


Law as a social phenomenon is a discourse of impressive structuresit breeds life and doctrine, meaning and language, thought and authority. It speaks with many voices: power, freedom, dignity, ethics, rights, justice. The noise generated by the various discourses of law create an intellectual landscape that can be mined for the kinds of insight that not only have the potential to enhance the jargon we have come to associate with law but also promote its grander, if not nobler, aims. It is with these ideas in mind that we introduce the Philippine Law and Society Review, a publication of the UP College of Law that caters to a wide array of investigations about the intersection between law and society. This effort is at once overdue and timely. For both students of law and observers of society who have long spoken about the relationship between the legal and the social but have lacked the necessary space for the articulation of such a discourse, the PLSR is a new channel for interdisciplinary studies. For the scholar who believes that the self-containedand therefore self-validatingjargon of law furnishes a very limited platform for observation, the PLSR is a wide expanse for critical, empirical, and theoretical examination. Merlin Magallonas paper, Theses on the Impact of International Legal Relations on the Constitutional System, proceeds in two parts. Part One deals with how the Philippine constitution governs the nature and function of the principles and norms of international law in the national sphere. It illustrates the resulting changes in the treatment of these principles of international law once they are incorporated or transformed through mechanisms allowed by the Constitution. It also highlights the different characters the same principles assume in the national and international arena and exposes the difficulties that arise owing to the failure to respect the duality of these legal regimes. Part Two accounts for how globalization has led to the expansion of international legal regulation over matters of national jurisdiction. Global integration has given birth to a supranational order. This paper explores the impact of such a phenomenon on our constitutional system and reexamines the role and impact of the Treaty Clause in legitimizing the supranational direction of our nations policies and ultimately, the derogation of our right to self-determination and independence in international law.

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note from editor note from the editor


Owen Lynchs Mandating Recognition establishes that the trend in international law is towards mandating the legal recognition of native/aboriginal title. There is growing evidence to that effect, as shown by international conventions and declarations, decisions of international tribunals, and emerging international standards. This paper presents and analyzes each of these decisions and standards. It asserts that given such evidence, international law, including international customary law, now, more than ever, supports and mandates legal recognition of native/aboriginal title. In The Judicial Review of Constitutional Amendments, Dante Gatmaytan examines the judicial review powers of the Philippine Supreme Court under the 1987 Constitution. He posits that Ginsburgs insurance theory on constitutional design operated within the Philippine experience, albeit with a twist: The powers of the Supreme Court, shaped by non-political actors with little or no vested interests in securing future political power, allowed the Court to be a more effective guardian of democratic institutions. We hope the articles in this first issue represent and begin an enduring and meaningful conversation about law and society in the Philippines. Welcome! Florin T. Hilbay

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CONTENTS
Theses on the Impact of International Legal Relations on the Constitutional System...................................................6 Mandating Legal Recognition: International Law and Native/Aboriginal Title...................................................31 The Judicial Review of Constitutional Amendments: The Insurance Theory in Post-Marcos Philippines..........74

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IMPA THESES ON THE IMPACT OF INTERN TIONAL LEGAL RELATIONS INTERNATIONAL LEGAL RELATIONS ON THE CONSTITUTIONAL SYSTEM CONSTITUTION ONSTITUTIONAL
MERLIN M. MAGALLONA*

ABSTRACT
Part One of this essay intends to show how the Philippine Constitution governs the nature and function of the principles and norms of public international law in the national sphere. It outlines a framework by which it deals with problems pertaining to the relation of international law and national law, from the standpoint of constitutional law. It aims to assist in resolving issues arising from the confusion in the application of principles of international law: whether in the international sphere or in the national plane. It illustrates this confusion in what appears to be an unexamined, or even mindless, situations detected in Supreme Court decisions. In Part Two, the paper surveys how global integration, reflected in the developments of international law, impacts on the constitutional system. The survey takes international law as decision-making processes governing the relation of international organizations and their member States. It examines the legal relations of the Philippines with the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (World Bank) and the World Trade Organization (WTO) in the setting of globalization. The resulting crisis of the Philippine Nation-State is explored.

PROFESSORIAL LECTURER, FORMER DEAN AND PROFESSOR OF LAW, UNIVERSITY OF THE PHILIPPINES, COLLEGE OF LAW.
*

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PART ONE
Internalization of General International Law
It is submitted as a premise that the Constitution requires as a sine qua non of their application in Philippine jurisdiction that principles and norms of international law must first be incorporated or transformed into national law. The Constitution has designed two mechanisms by which this is to be fulfilled, namely: the Incorporation Clause and the Treaty Clause. As explained below, incorporation or transformation is a peremptory mandate of the national legal system. The mechanism in the Incorporation Clause is described in Section 2, Article II of the Constitution, as follows:
The Philippines. . .adopts the generally accepted principles of international law as part of the law of the land. . .

To begin with, it is instructive to explain this mechanism by reference to the prevailing mythology as conceptualized in USA vs. Guinto1 as follows:
Sovereign immunity is one of the generally accepted principles of international law that we have adopted as part of the law of the land under Article II, Section 2 [of the Constitution]. Even without such affirmation, we would still be bound by the generally accepted principles under the doctrine of incorporation. Under this doctrine of incorporation, as accepted by the majority of States, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in relation with other states.

This interpretation necessarily implies that the Incorporation Clause has no vital purpose in the Constitution; it becomes a surplusage. It has the effect of eliminating its function from the fundamental law.
1

182 SCRA 644, 653 (1990).

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In the international plane, USA vs. Guinto may be acceptable in that, the generally accepted principle of international law are binding upon States as subjects of law. They are binding on the Philippines not by reason of the Incorporation Clause, but on account of the Constitution. By the nature of these principles as general international law, their binding force governs the conduct of States and other persons in international law. But it is in the context of national law that the Incorporation Clause assumes its real function. Here, the Incorporation Clause becomes an indispensable mechanism by which the Constitution changes the status of the generally accepted principles of international law from the international plane to the national sphere and thereby become part of Philippine law. This indispensability is rooted in State sovereignty a norm acquires the juridical status of national law only when it is so promulgated pursuant to processes of its constitutional system. There are no norms higher than constitutional norms, in particular with respect to principles derived from the international plane. In the national plane, the principles of general international law form part of national law not by mythical automatic incorporation but by reason of express directive of the fundamental law embodied in the Incorporation Clause; unless so ordained, they cannot be creative of enforceable rights and obligations under Philippine law. By means of the Incorporation Clause, the Constitution contemplates the following results: a. It is in the nature of these principles as part of general international law operating in the international sphere that they hold supremacy over the Constitution and national statutory law. But by means of incorporation as a constitutional act, they become subordinated to the Constitution, their application in the national sphere being subject to constitutional and legal standards. b. The application of these principles as national law pertains to subjects or persons of Philippine law comprising primarily of individual natural persons and juridical entities. This strikes a difference from their status in the international legal order in which they govern the legal relations of States, international organizations and other subjects of international law.

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c. In national jurisdiction, the principles of general international law become derivative of rights and obligations created by Philippine law, primarily by the Constitution. d. The same principles derive their validity from the Constitution under the Incorporation Clause, even as their substantive content is determined by international law. This is a marked departure from their status in the international plane, in which they derive their validity from the norm-creating processes of the international legal order.

Transformation of Conventional International Law


The transformative mechanism of the Treaty Clause is described in Section 21, Article VII of the Constitution, thus:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.

Following the orientation pursued above, this constitutional text is to be interpreted as pertaining to the national plane as well as to the international sphere. The treaty is valid and effective as national law and as an international agreement. However, the treaty as international law cannot be transformed into national law unless in the first place it has already entered into force as international law by its own provisions. In this light, the language of Guerrero Transport Services, Inc. vs. Blayblock Transportation Services Employees Association-Kilusan,2 becomes pertinent:
A treaty has two aspects as an international agreement between States, and as municipal law for the people of each state to observe.

A treaty may be in force as international law among State Parties, but it becomes valid and effective as national law only by means of Senate concurrence in the

2 3

71 SCRA 621, 629 (1976). Emphasis added. Emphasis added.

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process of ratification as a constitutional act. This dualist treatment is observed in Article 2 of the Vienna Convention on the Law of Treaties of which the Philippines is a party. Paragraph 1(a) of this Article adopts the usage of the term treaty in the international plane, as follows:
. . . treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.3

This usage in the international plane is to be read in close correlation with paragraph 2 of the same Article with respect to treaty in the national sphere, which provides: The provisions of paragraph 1 regarding the use of the terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.4 Thus, no less than the Vienna Convention on the Law of Treaties the treaty governing treaties respects the duality of legal regimes. The application of the concept of treaty in a misplaced context may lead to absurd results. For example, treaty as agreement in the international plane is used in the national jurisdiction in a case involving its constitutionality; as a treaty in the international plane, it holds supremacy over the Constitution and yet the domestic court at bar is in the exercise of its constitutional power to declare that it is in violation of the Constitution.5 Or, where the domestic court in a constitutionality suit under the same review power, postulates that treaty which it uses apparently in the context of the international plane is by nature in derogation of State sovereignty although in fact it is dealing with a treaty as domestic law, thus implying that a treaty as domestic law may be in derogation of Philippine sovereignty.6 The two constitutional mechanisms for the internalization of generally accepted principles of international law and of binding conventional rules into

Emphasis added. See Bayan v. Executive Secretary, 342 SCRA 449 (2000). 6 See Taada vs. Angara, 272 SCRA 418 (1997).
4 5

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Philippine law are integrally connected to the two principal sources of international law recognized by the international community as reflected in Article 38(1) of the Statute of the International Court of Justice (ICJ). In continuity with the juridical status of these sources in the international plane, the principles subsumed under the Incorporation Clause are reasonably interpreted as pertaining to general international law or international custom which is characterized as binding on all States; whereas the binding force of conventional rules under the Treaty Clause is limited to the States that are parties to the relevant treaties or conventions. The dividing line between these sources of law is drawn by the scope of their binding character as thus indicated. The constitutional design adopts this categorization and thus maintains the juridical distinction between norms of customary or general international law under the Incorporation Clause, on one hand; and conventional or treaty law under the Treaty Clause, on the other. Disregard of this categorization may have been committed by the domestic court in its pronouncement that the entire multilateral convention in issue may be subsumed under the Incorporation Clause.7 Or, in the obiter dictum of the court that the right to return to ones country as provided in the international human rights covenant, of which the Philippines is already a party, becomes part of national law by reason of the Incorporation Clause.8 As against the supremacy of the treaty over the Constitution in the international plane, the Constitution embodies the principle that in the national sphere there are no norms higher than constitutional norms, in particular in regard to conventional international norms. Representing the core provision in the dual character of Philippine jurisdiction, in Section 5(2)(a), Article VIII reads: The Supreme Court shall have the following powers:
. Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of the lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international

7 8

See Agustin vs. Edu, 88 SCRA 195 (1979). See Marcos vs. Manglapus,177 SCRA 668 (1989).

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or executive agreement, law, presidential decree, proclamations, order, instruction, ordinance or regulation is in question.9

As interpreted in Gonzales vs. Hechanova10 the supremacy of national law is extended to statutory enactments over treaties:
[O]ur Constitution authorizes the nullification of a treaty not only when it conflicts with the fundamental law, but also when it runs counter to an act of Congress.11

The supremacy of an act of Congress over a treaty in Gonzales is founded on the separation of powers doctrine and derives its constitutional force from legislative power: an executive agreement diametrically opposed to an explicit prohibition in congressional enactments cannot stand and must fall under the review power of the Supreme Court. It is the business of Congress to enact laws; not of the Executive, whose burden is to execute them. In one respect, the Courts formula loses strength; curiously, while Gonzales involves what it considers as executive agreement, the constitutional text that it applies defining its review power deals with treaty. The facticity of the case principally determined by executive agreement sustains the reasoning of separation of powers, but it does not hold much cogency in regard to the application of the juridical review power premised on treaty on account of the participation of the Senate in the ratification process of treaties. On two fundamental points, Abbas vs. Commission on Elections12 departs from Gonzales. Abbas affirms:
Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter. Thus, if at all, R.A. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law.13 Emphasis added. 9 SCRA 230 (1963). 11 Id. at 246. Emphasis by the Court. 12 179 SCRA 287 (1989). 13 Id. at 294.
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In the first place, Abbas sets aside the supremacy of the Act of Congress and installs the theory that the treaty is in parity with the statute. Secondly, in case of irreconcilable incompatibility between them, Abbas resolves this problem by the laterin-time principle or lex posterior derogate priori, in place of the Gonzales thesis of the Act of Congress nullifying the treaty. While Abbas limits itself to the amendatory or repealing effect, Gonzales goes on to the extreme of nullification; the practical effect may hold little difference in both cases from the viewpoint of the international plane in regard to the possible result in terms of state responsibility: a sharper confrontation between the national legal system and the law in the international plane. Having its own standards of legality (or illegality), international law operating in the international plane defines for itself what constitutes an internationally wrongful act on the part of States, independent of national law.14 Such a wrongful act comes into being when an action or omission constitutes a breach of an international obligation of the State, assuming that it is attributable to the State.15 The wrongfulness of an act is determined by international law and such determination is not affected by the characterization of the same act as lawful by internal law.16 In conformity with the Constitution, the Supreme Court may strike down a treaty as unconstitutional, reducing it to nullity as national law, with the consequence that no State organ or official would ever take action in compliance with the obligation of the Philippines under that treaty, leading the other States Parties to consider the Philippines as having committed an internationally wrongful act. Being an organ of the State, the Courts conduct may be attributable to the Philippines as its own act under international law.

This concept of state responsibility is derived from the Draft Articles on Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission which it adopted at its 53rd session in 2001 and submitted to the U.N. General Assembly. Text of the Draft Articles is published in the UN, The Work of the International Commission, Vol. I, 6th ed., 2004, pp. 372-385. The Draft Articles reflect customary law. 15 See ILC Draft Article 2. 16 See ILC Draft Article 3.
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In brief, the conduct of the Supreme Court may constitute a breach of international obligation of the State, on account of such internationally wrongful act.17 The formula in Ichong vs. Hernandez that the treaty is always subject to qualification or amendment by law18 is good for the consumption of the national-law regimes, but the rights and obligations of the States Parties to the treaty remain unaffected. Along the same principle, to be strictly confined to national law is the application of lex posterior derogat priori in Secretary of Justice vs. Lantion19 to the effect that a treaty may repeal a statute and a statute may repeal a treaty. Confusion in relating international law to national law may result in the following anomaly. In a constitutionality suit against the Visiting Forces Agreement (VFA) concluded between the Philippines and the United States, the Supreme Courts power to declare a treaty or international agreement unconstitutional is invoked.20 Apparently disjointed out of this context is the Courts affirmation that:
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relation. While the international obligation devolves upon the State and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligations. Hence, we cannot readily plead theConstitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.21

See ILC Draft Articles 1, 2 and 4. 101 Phil. 1156, 1191 (1957). 19 322 SCRA 160, 197 (2000). 20 Bayan vs. Executive Secretary, 342 SCRA 449 (2000). 21 Id. at 493. Emphasis added.
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From this standpoint, the Court may have created the need to be reminded that it is not sitting as an international tribunal which subordinates the Constitution to treaty obligations and, in doing so, does violence to the nature of the case at bar which is instituted for the purpose of determining whether the treaty in questionthe VFA contravenes the Constitution. Bayan, reversing the situation, now appears to turn the table and raise the issue instead as to whether the Constitution should be interpreted in conformity with the obligations under the VFA. It lends itself to the misconception that in domestic jurisdiction, the Constitution may be held to be violative of treaty law. Under the Treaty Clause of the Constitution, given above, it is the concurrence of the Senate alone that appears to make the treaty valid and effective as domestic law and as international agreement, in the context of the national sphere. With respect to multilateral conventions in particular, the law in the international plane is in complementarity with the law in the national sphere. Independent of national law, a multilateral convention becomes international law by means of the provision on its own entry into force. If by the time such a convention is concurred in by the Senate it has already entered into force by its own provision, then it becomes valid and effective as national law because at that moment and for that reason it has already assumed the character of international law. If the convention has not yet entered into force by that time, the effect of Senate concurrence is merged into the number of ratifications required under the entry-into-force provision of the convention, thus contributing a step towards its entry into force and towards its transformation into national law. In brief, an international convention may be internalized as national law if it has already become international law by its own provision.

22

The Case of the S.S. Lotus (France v. Turkey), 1927, P.C.I.J. (ser. A) No. 10, at 18. (Sept. 7).

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PART TWO
The Globalization Setting
The structure and modalities of international law have undergone transformation such that its relations to the national-law system generates pressures for fundamental adjustments in the national constitutional order. An estimate of this transformation may be illustrated by a reference to the well-known presumption formulated by the Permanent Court of International Justice in the Lotus Case that restrictions upon the independence of States cannot therefore be presumed.22 This implies that States are assured to have an independent means of action, unless it is clearly shown that their freedom is limited by customary norms or conventional rules of international law. Owing to the increasing integration of human affairs and institutions into a global community, the corresponding progress of international law spells the tremendous expansion of international legal regulation over matters of domestic jurisdiction, with the result that little ground may have been left for the latter. In fine, we may have arrived at the threshold of reversal of the Lotus presumption; it is the independence of States that cannot be presumed. They carry the burden to show that their acts in question are yet retained within their domestic jurisdiction. The trends of globalization seek their own way of internalization into the legal order. In the national sphere, their pervasive influence can irresistibly seduce juristic thinking in their sway. Increasingly, legislative acts assume the nature of implementation process for treaty obligations. Inevitably, it is the development of law in the international plane which would open the way to the consolidation of social, economic and political conditions for further changes along globalism.

33 ILM 1125 (1994). John H. Jackson, Reflections on International Economic Law, 17 U. Pa. J. Intl L. 17 (1996). 25 1 Phil. T.S. 117. See art. X. 26 Joseph Gold, Developments in the International Monetary System, the International Monetary Fund, and International Monetary Law Since 1971, 174 Recueil des Cours 107, 160 (1982-I). 27 1 Phil. T.S. 149.
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A focal point in the transformative stage is the advent of the Agreement Establishing the World Trade Organization (WTO),23 a product of global trade negotiations described as a watershed shift and the most profound change in international economic relations, institutions, and structures since the origin of the Bretton Woods System at the end of the World War II.24 Since that time, the reconstruction, development and stability of the world economy have been largely sustained by the operations of two international organizations, namely, the International Monetary Fund (IMF) and the International Bank of Reconstruction and Development or the World Bank. The World Trade Organization, the International Monetary Fund and the World Bank have interconnected functions. Under its Articles of Agreement,25 the IMF has a legal basis to establish close cooperation with the World Bank, which has been systematized in practice.26 On its part, the World Bank has interpreted its Articles of Agreement27 as authority to make and guarantee loans not only for specific projects but for programs of reconstruction of the monetary system, which relates its operations to the IMFs field of responsibility. Article III (5) of the WTO Agreement is explicit on the necessity for achieving what it calls greater coherence in global economic policy-making, and for this purpose it provides that the WTO shall cooperate. . . . with the International Monetary and with the International Bank for Reconstruction and Development. In the first Ministerial Conference of the WTO in December 1996 at Singapore, it was announced that the IMF and the World Bank signed an agreement with the WTO on the terms of cooperation with the view to further integrate developing countries into the global economy.28 Each organization holds tremendous influence in controlling the decisive course of individual national economies. Certainly, the driving force of their well-coordinated operations will accelerate the globalization trends towards the totalizing integration of the developing countries.

NEWS ASIA, 11 December 1996, at 1. See Christoph Schreuer, The Significance of International Organizations in Current International Law, 38 Law and State 63, 64 (1988).
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International Law as Decision-Making Process


This background leads us to a survey of the significance of one category of international-law rules, namely, the principles, standards and norms that are embodied in (a) the Articles of Agreement of the International Monetary Fund; (b) the Articles of Agreement of the International Bank for Reconstruction and Development; and (c) the Agreement Establishing the World Trade Organization. International law is traditionally identified with the formal sources set forth in Article 38(1) of the Statute of the International Court of Justice, consisting of international conventions, international customs and general principles of law. In this setting, international law is viewed as ready-made rules designed to be applied in resolving disputes.29 The dynamics of the International legal order lies as much in the policy-changing mechanisms, re-structuring of power and processes of making decisions. International law in the operations of the globalization triad, described above, is not so much a system of neutral rules as a system of decision-making directed towards the attainment of certain declared values.30 The forms and methods are derived from traditional international law but the substantive content embodies the policy goals of the triad.

Self-Determination Subject to Conditionalities


In this light, the development of international law governing the globalized economy has given rise to a supranational legal order in which international law as legal decision-making in the perception of Higgins is exercised by the principal organs of the IMF, the World Bank and the WTO, for compliance by members of this triad. The supranational legal system has the following constituent elements: a. An international agreement concluded by States establishing an international organization imbued with a personality separate from, and independent of, the
See ROSALYN HIGGINS, PROBLEMS AND PROCESS. INTERNATIONAL LAW AND HOW WE USE IT 1-16 (1994); Policy Considerations and The International Judicial Process, 17 Intl and Comp. L. Q. 58, 59 (1966). 31 A.J.P. Tammes, Decisions of International Organs as a Source of Law, 94 Recueil des Cours 261, 269 (1988-II).
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States composing it. b. By the same agreement the principal organs of the international organization are created, the decisions of which are deemed in law as those of the organization. c. The principal organs determine the concrete terms and conditions of the relation between the organization and its members. d. The principal organs have the legal competence to enter into agreements with the members to be governed by international law; hence, their decisionmaking capacity includes the authority to create rules and procedures binding on the States composing the organization. e. The decisions of the principal organs operate as international law binding on the members.31 Quite apart from the obligations embodied in their constituent instruments or charters of the IMF, the World Bank and the WTO, their principal organs have the competence to create binding commitments on the part of the members by imposing conditionalities in loan and guarantee agreement as well as in entitlement to financial facilities from the organizations. On the supranational level, the decisions of the Board of Governors or the Executive Directors of the IMF or of the World Bank, or the decision-making organs of the WTO, hold supremacy over national laws and policies. For example, Article XIV (4) of the WTO Agreement provides: Each member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the Annexed Agreements. This serves as an integral part of the WTO dispute settlement procedure that if the laws and regulations of a member are determined to be in contravention

Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 354 (1999), 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) [hereinafter DSU], art. 3, 7, 22. 33 DSU, id., art. 21. 34 DSU, supra note 32, art. 23.
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of its WTO commitments, it must make the necessary changes or adjustments in its laws or policies within the required period to avoid sanctions in the form of suspension or removal of concessions or retaliation by the complainant member.32 Compliance with such decisions is subject to surveillance to ensure implementation or enforcement.33 This mechanism of dispute settlement is applicable to conflicts involving laws and policies of a member vis--vis its obligations under the vast field of WTO regulatory coverage which include trade in goods, trade in services, trade-related intellectual property rights, agriculture, textile and clothing, trade-related investment measures, subsidies and countervailing measures, technical barriers to trade, and rules of origin. It is characteristic of the WTO dispute settlement mechanism that members are not allowed to take unilateral action in redress of a breach of WTO commitment or impairment of benefits under the WTO Agreement.34 Article 23 of the DSU requires them to resort to the prescribed procedure of resolving disputes, including determination of retaliation. The devolution of power to the WTO is complete, supreme and exclusive. In international monetary matters, the IMFs prerogative in controlling the effectiveness of enforcement is not limited to passive prohibition; it involves specific affirmative approval by the Board of Directors or the Executive Directors with respect to relevant national decisions and policies. The IMF jurisdiction is so comprehensive and commanding that the legal obligations they embody under Article IV of the IMF Articles of Agreement allow the IMF to intervene in every aspect of the national monetary policy-making. Under Section 1 of this Article, the Philippines has the obligation to (a) direct its economic and financial policies towards the objective of fostering orderly economic growth with reasonable price stability; (b) promote stability by fostering economic and financial conditions and monetary system that does not tend to produce erratic disruptions; (c) avoid manipulating exchange rates or the international monetary system in order to prevent effective balance of payments adjustment or to gain an unfair competitive advantage over other members; and (d) follow exchange policies compatible with the foregoing obligations. This statement of obligations, limited as it is, cannot be contained within the countrys monetary system alone. It affects the entire national economy, and thus the IMFs hegemonic control entails intervention into the whole field of decision-making in the entire national economy. Section 3(a), Article IV of the IMFs Articles of Agreement empowers it to oversee the compliance of each member with its obligations. To make this effective,

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the IMF has the authority to exercise firm surveillance over the exchange rates policies, and the Philippines has the corresponding duty to provide the IMF with the information necessary for such surveillance, which implies operational knowledge of the entire national economy.

Impact of International Law as Process


It is in the availment of financial resources of the IMF and the World Bank by the Philippines that the supranational authorities assume commanding control over the strategic directions and structuring of the national economy. Together with the Asian Development Bank, the World Bank is the main source of development funds, which the Philippines by its own internal sources is incapable of generating. This vital need all the more makes decisive the role of the World Bank in shaping the countrys economic as well as political and social life. The right to self-determination the nodal element of a States independence under international law is derogated by the concept of development made by the decision-making processes of the supranational authorities. In the context of these processes, the real object and purpose of the financial facilities derived from these sources is to effect policy and institutional changes required by the supranational authorities. President Julius Nyerere of Tanzania may have disclosed not only a political but a moral predicament as well in the relations of developing countries with the supranational authorities when he said: The IMF has an ideology of political and social development which it is trying to impose on poor countries irrespective of their own clearly stated policies . . . And when we reject IMF conditions we have the threatening whisper: Without accepting our conditions you will not get any money, and you will not get no other money.35 The policy and institutional changes effected by the supranational authorities may have produced more dramatic and far-reaching transformations than those brought about by the independent initiative of the Congress or the Executive

John Darnton, In Poor, Decolonized Africa, Bankers Are New Overlords, N.Y. TIMES, June 20, 1994, at 1, A9. 272 SCRA 18 (1997). 37 267 SCRA 408 (1997). 38 281 SCRA 330 (1997).
35 36

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Department. If at all, changes of equal significance may have been accomplished by the legislative and executive branches of the government, but they may have come into being on account of the fact that the policy prescriptions of the supranationals were carried out as part of the government program. It is in this peculiar context of economic and political transformation in the national community that some controversies of significance have reached the Supreme Court. Notably, these are Taada vs. Angara36 as regards the ratification of the WTO Agreement; Manila Prince Hotel Corporation vs. Government Service Insurance System37 with respect to the government privatization policy; and Tatad vs. Secretary38 on the oil deregulation law. These controversies mark the impact of authoritarianism of the supranational organizations and shed light on the consequences of their policy demands. In one respect, they show us the understanding as to how the Courts decision1 in Tatad vs. Secretary deals with a major policy prescription of the supranationals, resulting in the disruption of the long-standing practice of exploiting the countrys need for funds as a means of extracting policy and institutional changes by these external forces. The IMF and the World Bank had long pursued the demand on the government to free the oil industry from pricing restriction by government regulation and to remove the subsidy from the Oil Stabilization Fund. The desired policy on their part was to allow the market to determine the price of oil products, which meant that the oil transnational corporations themselves would be the ones to set the price for their products. The IMF team which reviewed the economic performance of the Aquino administration underscored this demand.39 To the IMF, deregulation of the oil industry became a criterion for the countrys economic recovery.40 The World Bank commissioned a study on the deregulation of the oil industry for approval by the Cabinet.41

IMF Wants Govt to Free Oil Prices Immediately, PDI, June 28, 1990, at 17. IMF Okays New Rules for Loans to Countries in Financial Distress, MLA BULL, December 19, 1997, at B-10. 41 World Bank links $400-M Loan to Energy Privatization, PDI, October 31, 1992, at 17. 42 Fil C. Sionil, IMF Graduation: Oil Deregulation to Hurdle Last Exit, MLA BULL, December 15, 1997, at B-1; Donnabelle Gatdula, IMF Wants Liberal Oil Deregulation Law, MLA CHRON, December 19, 1997, at 12. 43 IMF Defers RP Exit, MLA BULL, December 20, 1997, at B-1.
39 40

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Enacted into law as an administration measure, the IMF-sponsored deregulation measure for the oil industry became Republic Act No. 8181, An Act Deregulating the Downstream Oil Industry and for Other Purposes. The impending rise of oil prices resulting from the new statutory freedom of the oil market led to a broad public protest against the Oil Deregulation Law. When the Supreme Court struck down the law as unconstitutional in its entirety in Tatad vs. Secretary, it derailedfor some time at leasta major policy prescription of the IMF; the independence of the Court proved to be a saving grace vis--vis the habitual subservience to the supranational authorities. However, later, the IMF came back and demanded a new oil deregulation law as a condition to ending the IMF program and its supervision of the national economy.42 The IMF Executive Directors postponed the projected release of the Philippines from the IMFs hold pending the enactment of a new deregulation law.43 When Congress passed the revised deregulation law in Republic Act No. 8479, the executive department expressed dissatisfaction because the new law failed to comply with the IMFs Extended Fund Facility in which the Philippines committed itself to the deregulation of the oil industry.44 In the end, President Fidel V. Ramos placed the authority of his office behind the prospects for a solution more satisfactory to the IMF, declaring: All parties are working hard to have it done in a manner that will be acceptable to the IMF.45 The case of the Oil Deregulation Law is not an isolated one. The enactment of the Comprehensive Tax Reform Law in Republic Act No. 8424 was conditionality of the IMF attached to the Extended Fund Facility, one of the structural reforms required by the IMF.46 In a landmark restructuring of the countrys monetary and financial institutions, Congress enacted Republic Act No. 7653 establishing the Bangko

New Oil Bill May Not Meet Conditions for IMF Exit, MLA BULL, January 25, 1998, at B-1. Oil Measure to Pass IMF, MLA BULL, January 29, 1998, at B-1. 46 IMF Exit Hinges on 3 Conditions, MLA CHRON, January 6, 1997, at 9; Lilian Karunungan, IMF Exit Poses Challenges to RP, MLA CHRON, February 21, 1997, at 11; Exit Delayed; IMF Program to Continue, MLA BULL., June 5, 1997, at B-1; Rocel Felix, Partial Oil Deregulation Gets Underway, PHIL. STAR, July 17, 1996, at 27. 47 Fil C. Sionil, Special Report: Economic Blueprint of Ramos Govt Bared, MLA BULL, July 27, 1992, at B-1.
44 45

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Sentral ng Pilipinas, in place of the Central Bank Act. This initiative proceeded from the World Bank, with the support of the IMF, as a conditionality attached to Financial Sectoral Adjustment Loan intended to ensure the independence of the monetary agency through the representation of five members from the private sector in the Monetary Board, as against two from the government sector.47 Thus, from a survey of the impact of the supranational operations on our legal and constitutional system, we derive the following synthesis: a. As shown above, policy prescription and demand for structural changes from these authorities are channeled through legal and constitutional processes and thus they assume legitimacy in the constitutional framework as acts of government agencies. b. The pervasive policy intervention of the supranationals destroys the constitutional balance of power between the Executive and the Legislative Departments. It may be shown that the link between the IMF-prescribed program of government and the constitutional organs of broad republican representation is very tenuous indeed. Owing to the comprehensive nature of policy prescriptions and structural reforms covered by its relations with the supranational authorities, the Executive Department virtually becomes their implementing extension. Equipped with the financial resources from these authorities, the Executive effectuate policies as thus prescribed without seeing the need to involve legislative participation, except in extraordinary situations. The policy intrusions by the supranational authorities is not limited to specific projects. They prescribed an entire program of government; for more than four decades, the governments program had been contained in the Memorandum of Economic and Financial Program (MEFP), a formal statement of policies to be carried out by the Executive Department, as approved by the IMF in collaboration with the World Bank. The implementation of the conditionalities in MEFP is supervised by the IMF, which conducts a periodic review of government performance.48 On the part of the World Bank, the program of policies to be carried out by the Executive Department as conditionalites in the Economic Integration Loan (EIL) is contained
Fil C. Sionil, Phase-out of Incentives Pledged in IMF Accord Commitment Part of New Memorandum, MLA BULL, March 4, 1997, at B-1; Fil S. Sionil, Authorities Oppose WB Loan Conditions, MLA BULL, April 27, 1998, at B-1.
48

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in the EIL Policy Matrix. The Economic Agenda of the Ramos Administration had been described as based on the EIL Policy Matrix of the World Bank. It appears that the entire program of the government became a conditionality for loans and credits from the supranational authorities. c. The comprehensive field of policies which engages the controlling influence of the supranational authorities proves to be more significant than the scope of congressional power. In fact, as already illustrated, their policy initiatives are funneled into the legislative mill. There are, however, policy conditionalities of strategic and far-reaching consequences that did not enter the congressional agenda; a notable example is the policy of privatization and deregulation which, as a conditionality stipulated in MEFP, has gone a long way in implementation by the Executive Department. Strategic industries vital to national security have been privatized, such as National Steel, Philippine National Bank, Petron and Philippine Air Lines. d. The relation between the Philippines and the supranational authorities is based on the Philippines being a party to the constituent instruments or charters of the supranational authorities. Based on these instruments are a network of agreements. The legal relations between the Philippines and the supranational authorities are maintained on two levels, namely: (i) the charter of the organizations; and (ii) agreements pursuant to the purpose and object of the charters, which the organizations conclude with their members. On both levels, the rules of international law governing international agreements become the source of obligations on the part of the Philippines; they are transformed into Philippine law by virtue of the Treaty Clause of the Constitution. Loan and guarantee agreements with the World Bank and its subsidiaries present a special problem. Since these agreements create legal relations in that they define rights and duties under international law, are they not subject to Senate concurrence? The problem is complicated by the fact that set apart from the Treaty Clause in Section 21, Article VII of the Constitution is a provision dealing with the power of the President under Section 20, Article VII to contract or guarantee foreign loans with the prior concurrence of the

See Hugo J. Hahn, International Law and Guarantee Agreements, 41 State and Law 29 (1990). International Legal Aspects of the Operations of the World Bank, 98 Recueil des Cours 297, 316 (1959-III). 51 As quoted by Broches, supra 49, at 344. See Han, supra 48, at 30.
49 50

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Monetary Board. Insofar as the World Bank may be a party with the Philippines to such agreements, note that it has been its established practice that the loan and guarantee agreements it concludes are agreements governed by international law.49 Aron Broches, former General Counsel of the World Bank, had articulated the view that:
In analyzing the legal nature of the [World] Banks loan and guarantee agreements with its members, I shall be concerned primarily to consider by what rules of law these agreements are governed. My conclusion will be that they are international agreements governed by international law.50

The Loan Regulations of the World Bank provides:


The rights and obligations of the Bank and the Borrower under the Loan Agreement shall be valid and enforceable with their terms notwithstanding the law of any state, political subdivision thereof, to the contrary.51

Interpreting this provision, Broches is of the position that:


[T]he effect of [this provision] is not merely to de-nationalize the agreements but subject them in all respects to international law. I submit that any agreement between subjects of international law which by express terms excludes the application of municipal law is governed by international law. I further submit that it is only in an agreement between subjects of international law that the application of municipal law can be wholly excluded.52

The provision of the Loan Regulations given above is drawn from the World Banks General Terms and Conditions Applicable to Loan and Guarantee Agreements, which form an integral part of all such agreements concluded by the Philippines and the World Bank. The Philippines is contractually bound by the requirement that these loan and guarantee agreements are governed by international law.

52 53

Broches, op. cit., supra 49, at 345. Id. at 353.

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It is the practice of the World Bank, as decided by its Executive Directors that these agreements are registered with the UN Secretariat by authority of Article 102 of the UN Charter, taking into account the mandate of this provision that No party to any such treaty or international agreement which has not been [so] registered may invoke that treaty or international agreement before any organ of the United Nations. Broches observes: ...that registration, or filing and recording...of the Banks loan and guarantee agreements with its members may be regarded as confirmatory of their character as international agreements;53 and thus governed by international law. From these considerations, it is reasonable to infer that the loan and guarantee agreements under Section 20, Article VII of the Constitution are subject to Senate concurrence as required by the Treaty Clause, insofar as they are contracted by the Philippines with subjects of international law, i.e., with States or international organizations. Under the Constitution, it is only by Senate concurrence that a treaty or international agreement shall be valid and effective as Philippine law and as a source of international obligations. The present practice does not respect the necessity of Senate concurrence. While this practice enjoys legislative authorization of omnibus character, all that Congress requires of the President is to contract such loans, credits and indebtedness as may be agreed upon, as provided in Section 1 of Republic Act No. 4860. Clearly, Congress by generalized and comprehensive authority gives the President the fullest discretion in determiningor receivingthe terms and conditions of the loan or guarantee agreement under the coercive pressure of the World Bank, which are not known to Congress at the time its omnibus authorization was enacted. Whereas, Senate concurrence becomes at the same time a form of legislative scrutiny of the specific provisions, rights and obligations of each agreement in the context of the immediate circumstances justifying them. Through the Senate, legislative power provides a check to the excesses of Executive authority in accepting onerous conditionalities embodied in the agreement. The present situation allows considerable freedom on the part of the President to internalize into the constitutional system the authoritarianism of the supranational authorities. e. The overwhelming financial resources of the IMF and the World Bank may have provided the policy turning points in the restructuring and development of the Philippine economy more than what the plenary power of Congress may have accomplished. Now that the WTO is fully operational, the devolution of power over the countrys

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international economic relations under the WTO Agreement will increasingly exert the constraints on the main policymaking processes under the Constitution. The triad of the IMF, the World Bank and the WTO, through the constituent instruments ratified by the Philippines as international law, becomes the tail wagging the entire national economy. This should dramatize the thesis that the Treaty Clause of the Constitution is in crisis. It has become a mechanism for transforming rules of international law to be applied as national law. In truth, transformation does not merely achieve the internalization of treaty norms as ready-made rules for the settlement of disputes. Over and above that function, it has given constitutional legitimacy to the operations of the supranational authorities which, on a continuing basis, promulgate rules and decisions impacting on the strategic directions of the Philippine Nation-State and, in the main, taking over its vital policy-making processes. f. Attention is invited to the following partial coverage of the WTO Agreement, together with Annexed Agreements. In addition to the broad categories of trade in goods and trade in services, the scope of the WTO regulatory regime includes: (i) banking industry; (ii) financial and security services; (iii) insurance and reinsurance industry; (iv) transport industry; (v) intellectual property; (vi) investment measures related to trade; (vii) agriculture; (viii) textile and clothing; (ix) custom administration; (x) taxation and tariff system; and (xi) practice of profession. The broad dimension of the WTO regulatory regime suggested by this list implies that there may be a small area of domestic jurisdiction left for Congress to legislate on, if conflict is to be avoided with treaty-based laws. Moreover, in domestic jurisdiction, Congress may by law modify, amend or limit treaty rules when applied as national law and domestic courts may strike down a treaty or its provision as invalid or unconstitutional. But in the international plane, neither a legislative act nor a judicial decision may adversely affect the treaty rights and obligations among States parties; of supremacy is the application of the fundamental principle in international law that A party [to a treaty] may not invoke

Vienna Convention on the Law of Treaties Art. 27, opened for signature May 23, 1969, 1155 U.N.T.S. 331. See CONST. art. VI, 28(2). 56 For example, it is provided that The legislation of each Member shall provide in regard to a determination of customs value for the right of appeal without penalty, by the importer or among other person liable for the payment of duty.
54 55

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the provisions of its internal law as justification for its failure to perform a treaty.54 After the ratification of the WTO Agreement, the Executive Department assumed tremendous powers in its implementation. These powers may have been overextended by treaty provisions beyond the constitutional boundaries, as set out, for example, in the tariff clause of the fundamental law. The result was that the tariff rules under the GATT 1994 forming part of the WTO Agreement have the effect of virtually covering the entire terrain of tariff regulation of the Philippines, which the Constitution allocates to Congress.55 More disturbing are the provisions of the WTO Agreement implementing Article VII of GATT 1994 which regulate the very exercise of congressional powers under the Constitution.56

Revamping the Philippine Nation-State


The conditionalities and prescriptions described above may be summed up as the transformative directions of the Philippine Nation-State, as follows: 1. Liberalization of trade, which has the effect of eliminating the political boundary in the production of goods as well as in the flow of capital, services and labor. In a globalized setting, the countrys political boundary becomes an obstacle to the internationalization of the production processes, for example, through global subcontracting. 2. Privatization of public industrial and financial assets and institution, intended to eliminate public authority from the market, paving the way for unrestrained dominance of private capital in regulating itself. In the democratic context, privatization means the displacement of the peoples will expressed through public authority by the forces of the market; social or public welfare gives way to private profit as a legal standard. 3. As a complement of privatization, deregulation policy reduces the role of the State in the management of the national economy and thus enhances the power of private capital in the operation of the economy; in other words, the curtailment of economic sovereignty vis--vis foreign investments. The principle of profit maximization replaces social security and public accountability.

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4. These policy components are combined into a strategy to remold the Philippine statehood, resulting in the dismantling of structures and institutions built on the foundation of democratic will and economic nationalism. In its study entitled Emerging Asia: Changes and Challenges, the Asian Development Bank (ADB) sees the need for Asian governments to redefine the boundaries of their responsibilities. The essential message of the study is that Asian government shall become less concerned with appropriating and directly allocating resources. It spells out the downsizing of the State in its economic and social role, i.e., the displacement of the welfare state by private capital, otherwise known as the forces of the market. Significant is the subject-matter of the World Banks 1997 Development Report, The State in a Changing World. It calls for a re-thinking of the role of the State and recommends a strategy along privatization and deregulation. This outlook is alien to the State conceptualized in the Constitution. It is a welfare state that is the bearer of economic and social policies, beginning with nationalism as a fundamental creed. The Constitution defines the State as the embodiment of the collective will of the national community proclaiming that All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, flora and fauna, and other natural resources are owned by the State, to be disposed of primarily for the benefit of the Filipino citizens on the principle of intergenerational equity. It is a fundamental law of economic sovereignty that resides in the Filipino people on the premises of sustainable development. By the authoritarianism of the supranationals, economic sovereignty is in the process of being fractured away from the people. Should changes in the constitutional system take place, the constitutional convention as its likely forum will become an ideological battleground as to the concept of the Philippine Nation-State that will prevail, a confrontation that involves a new level of relation between the national law of sovereignty and the international law of globalization.

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MANDATING RECOGNITION: International MANDA RECOGNITION: Intern tional Law Native/ABORIGINAL Law and Native/ABORIGINAL TITLE
OWEN J. LYNCH* ABSTRACT**
This paper identifies, summarizes and analyzes leading international and national laws and judicial cases recognizing or otherwise supportive of native/aboriginal title. Native/ aboriginal titles are community-based property rights typically held by indigenous peoples and some other original, long-term-occupant local communities. The paper evinces widespread and growing evidence that international law is moving towards (and arguably already is) mandating legal recognition of native/aboriginal title to indigenous territories and ancestral domains. It references decisions of the International Court of Justice (ICJ), the Inter-American Court (IAC), and the African Commission on Human and Peoples Rights, (N.B. Asia has yet to constitute any juridical entity comparable to the IAC or its European and African counterparts), as well as other emerging international standards. This emerging mandate is apparent in international conventions and declarations, as well as at least fourteen nation states that are already obliged under domestic law, albeit in differing ways, to recognize indigenous peoples and others native/aboriginal titles. Since 1968 eleven African nations have recognized customary rights as including property rights in their constitutions and/or land laws. Major international law conventions, declarations and other instruments that are supportive of native/aboriginal title are also identified. Finally, the paper summarizes leading cases and instruments in comparative/national (international customary) laws that are likewise supportive of legal recognition. The paper is not intended to be exhaustive; nor is it completely up to date. Rather, it establishes that the trend in international law as conventionally understood, as well as customary international law, as evinced in the domestic law of a growing number of nationstates is towards mandating the legal recognition of native/aboriginal title.
FELLOW, RIGHTS AND RESOURCES INITIATIVE; VISITING PROFESSOR, COLLEGE OF LAW, UNIVERSITY OF PHILIPPINES; US FULBRIGHT SCHOLAR. ** This paper was enhanced byand the author is deeply grateful forthe extensive comments provided by five anonymous reviewers, as well as Roshan Jose, Kristen Hite, Andy White and Jeffrey Hatcher. For various reasons not all of their many useful suggestions could be accommodated, but each was considered and much appreciated.
*

THE

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Human Rights and Environmental Justice in International Law1


Over the past 60 plus years there has been growing attention paid to indigenous peoples and other local communities still living in areas originally inhabited by their forebears. This interest is prompted by various concerns, including human rights, economic development, and environmental protection and conservation. Meanwhile, there has been an observable increase in environmental and other types of conflicts throughout the world, many of which are violent and profoundly destructive of human well-being and our natural environment. The conflicts too often revolve around issues concerning property rights, especially those of indigenous peoples and other local communities who live in rural areas of Africa, the Americas, Asia and the Pacific. A new and emerging early 21st century variant, which borders on the bizarre, involves potential discord over ownership of carbon in trees, including trees planted and protected in long inhabited areas.

In this paper law is understood to be a process of decision making by those who are politically relevant, i.e., a process of authoritative decision-making. See W.M. REISMAN, et. al., INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (2d ed. 2004). W.M. REISMAN & A.M. SCHREIBER, JURISPRUDENCE: UNDERSTANDING AND SHAPING LAW (1987). E.A. Hoebel asserted in THE LAW OF PRIMITIVE MAN that laws and legal systems have four basic elements: 1) norms; 2) regularity of enforcement/application; 3) judgment mechanisms; and 4) enforcement. Cambridge, MA: Atheneum (1954). Enforcement has long stood out as the weakest aspect of international law. Publicity and social ostracism, however, have emerged as important modes for effectively promoting international law enforcement. N.B. The author has paraphrased some of Hoebels language. Use of the word primitive is inappropriate and arrogant in the context of 2010. Over a half-century ago Hoebel was using language that other social scientists of the time were also using widely. It merits note that Hoebels writings reflected fascination and admiration for non-dominant indigenous peoples and cultures. Conventional international lawyers would no doubt argue in favor of a more structured and hierarchical understanding of international law. They tend to categorize international laws as being hard or soft, with only certain international law norms, e.g. conventions, International Court of Justice decisions, and arguably covenants, providing standards that are legally binding (despite often being unenforced and sometimes unenforceable). This paper, by contrast emphasizes emerging global trends and commitments by nation-states to new and progressive international law norms supportive of human rights and environmental justice, especially legal recognition of native/aboriginal title. It relies on emerging understandings of international law that are more inclusive and encompassing. These approaches are increasingly freed from historic but now often dated post-WWII state-centric theoretical constrictions. See comments below by the UN Special Rapporteur on Indigenous Issues, footnotes 11 to 14 .

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The increasing frequency of conflicts over property rights to land, water, forests, trees, carbon and other natural resources is, in large measure, related to threatening global trends concerning human demography, consumption, pollution, violence, inequity, failed states and more. These trends increase and exacerbate already unprecedented demands on the regenerative capacities of remaining ecosystems. In widely varying degrees they jeopardize the precarious well-being of all human beings, especially and most immediately vulnerable groups directly dependent on natural resources for their very survival. Today, overreliance on environmentally inappropriate, unfair and often ineffective land, forestry, mining, water and other natural resource laws as well as almost exclusively quantitative measures of development stubbornly endures. This, in turn, exacerbates and reinforces in many areas intra-national and international disparities in regards to wealth, poverty, and fairness, as well as environmental resources and threats. Many environmental/ conservation initiatives, especially those intended to protect important areas of biological diversity, remain largely indifferent and often even hostile to economic development. Too often these conservation initiatives also ignore human rights and cultural considerations, including the aspirations and interests of indigenous peoples and other local communities. Legal and other scholars, policy scientists, researchers, community advocates and others are studying and analyzing the multidimensional nature of these seemingly irresolvable challenges. Many increasingly perceive human rights, environmental protection and economic development objectives as complementary, rather than as unrelated or opposing objectives. Despite an evolving and promising tripartite approach2 that jointly addresses human rights, environmental and economic concerns, and enduring international economic crises, the prevailing and often single minded pursuit of economic growth and individual private property rights still dominates, overwhelmingly. This pursuit is premised on theoretical and quantitative models that subordinate and too often ignore environmental, labor and human rights concerns, especially when they cannot be easily assessed monetarily.

The author is indebted to Gregory Maggio for the tripartite concept. See footnote 40 below.

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Meanwhile, the growing emphasis on a tripartite approach has contributed to increasing legal support for environmental justice on international, national and local levels. One of the most positive indicators is broadening support for the legal recognition of native/aboriginal title, especially in nations once subject to British colonialism.3 The trend is readily evident in international law instruments, particularly the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted by the General Assembly on 13 September 2007.4 The UNDRIP provides a basis for demanding greater and more meaningful participation in international decision making processes. Unlike other legal instruments, the Declaration does not limit the requirement for consultation and cooperation to the national level.5 The increasing legal support for environmental justice and meaningful participation by vulnerable groups, including indigenous peoples and other original rural long-term-occupant local communities, is not only motivated by concerns about basic fairness. Rather, it is a rational response to a growing body of research that demonstrates the vital role local knowledge and incentives play in the conservation of biological and other resources, including carbon stored in trees. A recent report by the World Bank no less concluded that the amount of forest cover and biodiversity within indigenous territories is higher than expected, and much higher than within strict protected zones and areas not inhabited by indigenous peoples.6
See Part II B below regarding Botswana, South Africa, Australia, Malaysia, New Zealand, Belize, Canada, the USA and the Philippines (a former colony of the USA). 4 See United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 available at http:/ /www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (last accessed Oct. 30, 2011). See also General Assembly Adopts Declaration on Rights of Indigenous Peoples, Sep. 13, 2007, http://www.un.org/News/Press/ docs//2007/ ga10612.doc.htm (last accessed Oct. 30, 2011); http://www.iwgia.org/sw248.asp; World Bank Operational Policy 4.10 of 2005. 5 Foundation for International Law and Development (FIELD). Ways for Indigenous Peoples groups to advance adaptation concerns and solutions through international fora (mimeo.) (2009). Prepared for the Inuit Circumpolar Council in Alaska (on file with the Author). 6 A. Nelson and K. Chomitz, Do Protected Areas Reduce Deforestation?: A Global Assessment with Implications for REDD, Washington, DC: World Bank Independent Investment Group (2009), http:// www.rightsandresources.org/ publication_details.php?publicationID=1373 (on file with the Author). Included in the assessment was proof, using satellite imagery, that biodiversity conservation is higher within indigenous peoples territories than outside, two times higher than expected. See also The Wealth of the Poor: Managing Ecosystems to Fight Poverty, World Resource Institute, World Resources Report 2005, available at http://www.wri.org/publication/world-resources-2005-wealth-poor-managing-ecosystemsfight-poverty (last accessed Oct. 30, 2011); A. Molnar, S. Scherr and A. Khare. Who Conserves the Worlds
3

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Many rural peoples are guardians and stewards of forests and other natural resources, including biodiversity reservoirs and carbon sinks, and possess important local knowledge for managing these resources sustainably. Of course, local conditions and cultures vary and not all local people, including indigenous people, respect, protect and sustainably manage their natural environments. But all of them are human beings and have inherent rights simply by virtue of being human. What else gives meaning to the term human rights? Who among us will dare to argue publicly otherwise?

Self-Determination vis--vis Native/Aboriginal Title


Although related, there are major differences between concepts of selfdetermination and native/aboriginal title. In Roman law the concept of imperium, or sovereignty, was often referred to as formal legal authority exercised by senior government officialdom over territorially expansive areas, sometimes with virtually absolute power, particularly in the case of some emperors. Originally a military concept, the word was derived from the Latin verb imperare (to command): the right was based on the power of the empire, i.e. the state, to enforce its law within its territories. Dominium, or dominion, on the other hand was understood to be much more limited in scope. It referred to legal authority to manage and otherwise control the use and exploitation of specific areas of land and other natural resources.7 Pursuant to the foregoing understanding, this paper deals solely with dominium. It does not purport to address issues related to self-determination of indigenous peoples, despite the overlapping aspects of imperium and dominium.8
Forests? Community-Driven Strategies to Protect Forests and Respect Rights, Washington, DC, Rights and Resources Initiative (2004); Ed Ayres, Mapping Diversity: Mapping the Nature of Diversity: A Landmark Project Reveals a Remarkable Correspondence Between Indigenous Land Use and the Survival of Natural Areas, http://www.worldwatch.org/node/533 (last accessed October 30, 2011); J. Alcorn, Indigenous Peoples and Conservation, CONSERVATION BIOLOGY 424 (1993). 7 The author owes his understanding of the difference between imperium and dominium to extended conversations during the 1980s with the late professor of Roman law at the University of the Philippines College of Law, Perfecto V. Fernandez. 8 An anonymous reviewer of an earlier draft of this paper observed that Whereas all peoples (including indigenous peoples) have the right to self-determination, all persons have property rights. The African Charter on Human and Peoples Rights consciously makes this distinction between the two sets of rights. Native/aboriginal titles are held by peoples and/or persons.

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To be more explicit, under international law, issues related to imperium, i.e., sovereignty and self-determination, arguably pertain only to inchoate rights of indigenous peoples, and not to other local communities including those comprised of original, long term occupants. In the authors opinion, international laws concerning native/aboriginal title pertain to both indigenous and some other local communities comprised of original long term occupants whether or not their property rights are yet recognized and documented by the nation state in which they are located.9 It merits emphasizing that The character of international law has evolved with shifts in the ordering of political power and burgeoning of international institutions that constitute themselves on precepts of a peaceful and just world order.10 Prof. James Anaya, the UN Special Rapporteur on Indigenous Rights,11 adds that international law has been made to include a burgeoning and influential transnational discourse concerned with achieving peace and a minimum of human suffering.

There are no reliable estimates of the number of original long term occupants who would not be widely considered, or in many instances even self-identify, as indigenous. Based on the authors knowledge and experience over three decades working on legal aspects of land and other property rights issues concerning rural people, the number must be in the tens, if not hundreds, of millions of people in various regions of Africa, the Americas, Asia and Europe. A specific example would be the Maroons of Suriname (see Moiwana Village and Saramaka below) and Cebuano vegetable farmers on the southern end of the Philippine island of Cebu, who farm on slopes long considered by the Republic of the Philippines (and its colonial predecessors) to be classified public forest (albeit denuded) land. These Cebuano farmers, and millions of other Filipinos like them, are also indigenous, at least in the same way the Irish are indigenous to Ireland and the Kurds to Kurdistan, and are poor and ostensibly squatters. Some farm the same land as their great-great grandparents, and there are no overlapping claims by any other indigenous ethnic group, only by the state. To argue otherwise because they share the dominant national Hispanicized culture is to overlook their poverty and legal disenfranchisement. 10 S.J. ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 49 (2d ed. 2004). 11 The title Special Rapporteur is accorded to individuals who have a specific mandate, typically for three years, from the UN Human Rights Council to investigate, monitor and recommend ways to ameliorate and solve human rights problems. Special Rapporteurs are appointed by the UN Secretary General, are independent of governments, and are not financially compensated but can receive personnel and logistical support. Upon governmental invitation Special Rapporteurs often conduct in-country fact-finding missions to investigate allegations of human rights violations. Special Rapporteurs also regularly assess and verify complaints made by alleged victims of human rights violations. Verified complaints result in the issuance of an urgent letter or appeal to the national government where the violation has occurred.
9

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He goes on to aver:
This modern discourse of peace and human rights, which tempers positivism in international law, represents in significant measure, the reemergence of classical-era naturalism, in which law was determined on the basis of visions of what ought to be, rather than simply on the basis of what is. 12

In Prof. Anayas words An array of procedures involving international institutions exist encouraging states to comply with their obligations under international human rights law and bringing pressure to bear on them when they fail.13

International Law Mandates Recognition


Today, it is no longer premature to assert that international law, including international customary (comparative/national) law,14 mandates legal recognition of native/aboriginal title.15 In other words, from Canada to Malaysia, South Africa to Australia, Papua New Guinea to Brazil, international customary law, based primarily on a growing number of national laws and cases, as well as international instruments, principles, and court decisions, now prescribes the domestic legal recognition of aboriginal/indigenous property rights. This includes an increasing number of recent and encompassing indicators reflected in international laws that recognize the rights of indigenous peoples and others in long occupied, ancestral areas, including rights to land, forests, trees, waters and other natural resources local peoples invoke and depend on. As stated in October 2007 by the

See note 10 at 50 (emphasis in original). See note 10 at 290. 14 The Statute of the International Court of Justice recognizes the existence of customary international law in Article 38(1)(b), incorporated by Article 92 into the United Nations Charter: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply...international custom, as evidence of a general practice accepted as law. See also Articles 34 to 38 of the Vienna Convention on the Law of Treaties (1969) available at http://untreaty.un.org/ilc/texts/instruments/english/ conventions/1_1_1969.pdf (last accessed Oct. 30, 2011) and Part II B below. 15 Different terms are used, depending on locale, to refer to native/aboriginal/original/indigenous/ tribal/First Nations title.
12 13

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Supreme Court of Belize in Cal v. Attorney General16 there already are an overwhelming number of states reflecting the growing consensus and the general principles of international law on indigenous peoples and their lands and resources.17 The trend in support of legal recognition of native/aboriginal titles held by indigenous peoples and other original long-term occupants is clear in international law and international comparative (national) law. This trend reflects broadening acknowledgment, and in some national contexts politically necessary amelioration, of enduring and fundamentally unfair legal arrangements. It builds upon growing awareness that the local knowledge and practices of long-term occupants often contribute to conservation and sustainable management of forests and biodiversity. This development is evident even within the World Bank,18 and in some instances has resulted in local communities receiving monetary encouragement for continuing to provide environmental services that promote conservation and sustainable development.19 The emerging norm of free prior and informed consent (FPIC) manifests one aspect of the trend towards the development of international law supportive of native/aboriginal title, including legal standards that protect the rights, interest and well-being of local rural communities regarding the natural resources they depend on for their lives and livelihoods.20 Similar to community-based property rights (CBPRs), 21 including native/aboriginal title, the right to prior informed consent of indigenous and other local communities can be viewed as a human right that derives

Claims Nos. 171 and 172 (2007) available at www.law.arizona.edu/depts/iplp/advocacy/m aya_belize/documents/ClaimsNos171and172of2007.pdf (last accessed October 30, 2011). 17 For background on the case in Belize see below. 18 See footnote 6 above. 19 See, e.g., What is an Environmental Service? http://pib.socioambiental.org/en/c/terras-indigenas/servicosambientais/o-que-e-servico-ambiental (last accessed October 30, 2011); Fair Deals For Watershed Services In Indonesia, http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=448:fairdeals-for-watershed-services-in-ind (last accessed October 30, 2011).
16

20

A. Perrault, K. Herbertson and O. Lynch, Partnerships for Success in Protected Areas: The Public Interests and Local Community Rights to Prior Informed Consent, 19, No. 3 Geo. Intl Envtl. L. Rev.

. See also F. McCay, FPIC in International and Domestic Law, Address at the Briefing for World Bank Executive Directors on Free Prior Informed Consent (2004), available at http://www.bicusa.org/bicusa/ issues/FPIC_briefing_documents.pdf (on file with the Author).

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its authority from and is recognized not only by international law, but also natural law concepts; the existence of a right to FPIC is not necessarily dependent on governments or any creation, grant or recognition by a particular nation state.22 Another significant development involves ongoing efforts to identify and articulate more clearly the responsibilities of non-state actors under international law. More specifically, the UN High Commissioner for Human Rights in 2005 requested the appointment of a Special Representative to, among other things, identify and clarify standards of corporate responsibility and accountability.23 The Special Representative noted that international instruments clearly impose at least an indirect responsibility on corporations. The duty requires states to play a role in regulating and adjudicating abuse by business enterprises or risk breaching international obligations.24 A consortium of leading international environmental NGOs, including the World Conservation Union (IUCN), the World Commission on Protected Areas (WCPA) and the World Wide Fund for Nature/World Wildlife Fund (WWF), promulgated a Joint Policy Statement on Principles and Guidelines on Indigenous and Traditional Peoples and Protected Areas. In it they agreed that rights should be respected in relation to the

21 For definition and description of CBPRs see Chapter One of O. Lynch and E. Harwell, Whose Natural Resources? Whose Common Good? Towards a New Paradigm of Environmental Justice and the National Interest in Indonesia. Washington, DC and Jakarta: Center for International Environmental Law (CIEL); Lembaga Studi dan Advokasi Masyarakat - The Institute for Policy Research and Advocacy (ELSAM); International Center for Environmental Law (ICEL) and International Center for Research on Agro-Forestry (ICRAF) (2002) available at www.ciel.org/ Publications/ Whose_Resources_3-27-02.pdf (last accessed October 30, 2011). See also O. Lynch, Promoting Legal Recognition of Community-Based Property Rights, Including the Commons: Some Theoretical Considerations. Presented at a Symposium of the International Association for the Study of Common Property and the Workshop in Political Theory and Policy Analysis, Indiana University, Bloomington (1999) available at http://www.ciel.org/ Publications/promotinglegalrecog.pdf (last accessed October 30, 2011). CBPRs could include customary use, collective rights, usufruct rights that may or may not also include rights to underlying land, easements, and in some cases fee simple title; and may or may not be recognized by national or local authorities, and may or may not overlap or conflict with other property rights or claims. 22 Lynch, Promoting Legal Recognition of Community-Based Property Rights ibid. 23 Office of the High Commissioner on Human Rights, Human Rights and Transnational Corporations and other Business Enterprises, Human Rights Resolution 2005/69, UN Doc. E/CN.4/2005/L.10/Add.17 (April 20, 2005). 24 Supra.

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lands, territories, waters, coastal seas and other resources which they traditionally owned or otherwise occupy or use, and which fall within protected areas.25 The broadening concept of international environmental justice and conservation and duties to promote and protect it reflects an ever more globally acknowledged basic moral principle: human beings, including those belonging to indigenous and other local communities, have a basic human right to participate effectively in official decision-making processes that directly impact the natural resources they depend on for life and livelihoods. The section that follows presents the international legal basis for this conclusion.

I. Environmental Justice in International Law

A. Conventions and Declarations


As recognized in a growing number of international law instruments and judicial decisions, human rights exist and should be respected.26 By now it is likewise evident that sustainable development and environmental justice are symbiotically related, compatible, and need be jointly pursued.27 These legally cognizable and often

IUCN, WCPA & WWF, Joint Policy Statement on Indigenous and Traditional Peoples and Protected Areas: Principles and Guidelines (1996) available at http://www.worldwildlife.org/what/communityaction/
25

people/partneringwith/WWFBinaryitem6053.pdf (last accessed October 30, 2011).

The UN Covenant on Civil and Political Rights states unequivocally in Part Three, Article 6 that Every human being has an inherent right to life. For a list of internationally recognized human rights instruments. See http://www2.ohchr.org/english/law/ccpr.htm (last accessed Oct. 30, 2011). 27 The 1993 Vienna Declaration and Program of Action states in Part I, para. 11 that The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations.
26

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complementary rights constitute a progressive and impressive array of 20th Century advances in legal norms within and among our human community. The UN Universal Declaration of Human Rights best expresses the right to human existence and dignity.28 Other human rights relevant to processes for securing legal recognition of local property rights include the right to development,29 the right to participate,30 the right to assemble,31 the right to information,32 the right to fair adjudication and equitable redress of grievances,33 the right to share the benefits of genetic resources located within indigenous territories,34 the right to the conservation and protection of the environment,35 the right to free and prior informed consent,36

The Preamble of the UN International Convention of Civil and Political Rights affirms that this right to human life arises from the inherent dignity of the human person.
28 29

Declaration on the Right to Development, available at http://www.un.org/documents/ga/res/41/a41r128.htm (last accessed Oct. 30, 2011). The charter of the UN includes development as among the goals of its agenda

for economic and social development. Article 23 of the Declaration on the Rights of Indigenous Peoples elaborates: Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions. The African Charter on Human and Peoples Rights states in its Preamble it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights. 30 Article 25 of the UN Covenant on Civil and Political Rights promotes democratic government based on the consent of people and in conformity with the principles of the Covenant. The Covenant is largely concerned with elections, rights to vote, run for office, assemble, etc. Remarkably, except for UN DRIP and the Aarhus Convention for Europe, as of 2010 there is no widely recognized right in international law ensuring that individuals and local communities can participate in environmental decisions that directly impact on their lives and livelihoods. 31 Article 20, UN Universal Declaration of Human Rights. Article 20 of the UN Covenant on Economic, Social and Cultural Rights contains some of the most significant international legal provisions relevant to this paper, including rights to social protection, to an adequate standard of living, to education and enjoyment of the benefits of cultural freedom and scientific progress. It also provides equal rights for women and men; the right to just and favorable conditions of work; the right to protection and assistance to the family; the right to adequate standard of living; the right to education; the right to take part in cultural life; and the right to enjoy the benefits of scientific progress and its applications. These rights were reaffirmed anew a half century later in the 2007 UN DRIP. 32 Article 19, UN Universal Declaration of Human Rights. 33 Article 6(1), European Convention on Human Rights.

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the right to freedom of religion, including protection of sacred sites, 37 and the right to cultural integrity.38 Some of these rights, and others, are expanded upon in Agenda 21. The first major international law instrument to link human rights and environmental-protection objectives is the Stockholm Declaration on the United Nations Conference on the Human Environment of 1972.39 Following Stockholm, a major shift in thinking and in development programs took hold and spread.40 Since then the realm of international law and environmental concerns has begun to address an expanding number of environmental justice issues. Examples of growing interest in support for environmental justice are found in various legal instruments promulgated by the international community. Foremost, in regard to this papers topic, is the historic 2007 United Nations Declaration on Indigenous Peoples (UNDRIP). It affirms the righteousness of indigenous peoples struggles, including their resistance to centuries of injustice.

Article 8(j), UN Convention on Biodiversity. See also P. Gepts. Who Owns Biodiversity and How Should the Owners Be Compensated, 134 Plant Physiology [not ital.] 1295 (April 2004), available at http://www.plantphysiol.org. 36 The right to free and prior informed consent (FPIC) is found in various instruments, including the UNDRIP. An earlier indicator of the right can be found in the Convention on Biological Diversity in regards to indigenous peoples access and benefit sharing of genetic resources. FPIC ensures a formal role for local people and some form of veto powerin consultations and decisions regarding local development and conservation projects. It is intended to secure the rights of indigenous peoples and local communities: their rights to selfdetermination, to control access to their land and natural resources, and to share in the benefits when these resources are utilized by others. See A. Perrault, K. Herbertson and O. Lynch, Partnerships for Success in Protected Areas: The Public Interest and Local Community Rights to Prior Informed Consent, supra note 10. 37 Article 18, UN Universal Declaration of Human Rights. See also R. Herz, Legal Protection for Indigenous Cultures: Sacred Sites and Communal Rights, Va. L. Rev. Vol. 79, NO. 3 (1993). 38 See D. Ayton-Shenker, The Challenge of Human Rights and Cultural Diversity, United Nations Background Note (1995) available at http://www.un.org/rights/dpi1627e.htm (last accessed Oct. 30, 2011). 39 Declaration of the United Nations Conference on the Human Environment, available at http:// www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503 (last accesed Oct 30, 2011). 40 O. Lynch and G. Maggio. Human Rights, Environment, and Economic Development: Existing and Emerging Standards in International Law and Global Society. Paper prepared for the Earth Council, Costa Rica and the World Resources Institute (1996), http://www.ciel.org/Publications/olpaper3.html (last accessed Oct. 30, 2011).
34

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Evidence of the favorable trend supporting recognition of native/aboriginal titles held by indigenous and some other original-long-term-occupant local communities in international law is readily apparent and widespread in UNDRIP and elsewhere. At minimum the prevailing trend is to ensure that local communities are not involuntarily and forcibly removed from their ancestral domains and are able to participate meaningfully in official decisions that directly impact the natural resources they depend on for their lives and livelihoods. This trend is evident in Europe, Africa, the Americas, Asia and the Pacific.41 The UNDRIP recognizes:
the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.42

It likewise acknowledges:
that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment

Perhaps most significant, the UNDRIP specifically provides in Article 26 that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned.43 Article 10 of the Declaration explicitly provides that:
41 42 43

See part II below.


UNDRIP, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (last accessed Oct. 30, 2011).

UNDRIP had the support of 143 member states; only four voted against, including the USA. On April 23, 2010, within a week after New Zealand (and previously Australia) reversed its position and supported the Declaration, the U.S. ambassador to the UN announced that the United States is undertaking a review of its opposition. See http://blogs.alternet.org/speakeasy/2010/04/24/united-states-re-examines-opposition-to-undeclaration/ (last accessed Oct. 30, 2011). Only Canada and the USA remain holdouts today. See www.survivalinternational.org/news/5846 (last accessed October 30, 2011). Canadas House of Commons passed a motion on April 8, 2008 endorsing the UNDRIP and calling upon Parliament and the Government of Canada to fully implement the standards contained therein; however, Canada has yet to sign on. See http:/ /firstnationstaskforce.wordpress.com/about (last accessed October 30, 2011). Eleven states, including Kenya, Nigeria, the Russian Federation, Ukraine and Columbia abstained, or were not present. i.e., absent, during the vote, such as Ethiopia, Cote dIvoire, Chad, Somalia, Uganda, Papua New Guinea and several other Pacific Island nations. See www.un.org/News/Press/docs//2007/ga10612.doc.htm (last accessed October 30, 2011).

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Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.44

Buttressing UNDRIP is the International Labor Organization (ILO) Conventions No. 107 and 169 on the Rights of Indigenous and Tribal Peoples in Developing Countries.45 Enacted in 1957 and 1989, ILO Conventions 107 and 169 had for decades been the leading international law instruments on native/aboriginal title.46 Various other supportive declarations and conventions helped lay the foundation for the UNDRIP. These include the 1992 Rio Declaration from the United Nations Conference on Environment and Sustainable Development, which also adopted Agenda 21.47 Both documents address an array of important issues related to environmental justice. The 1995 Copenhagen Declaration by the World Summit on Social Development was a watershed in its emphasis on the economic dimensions of environmental justice. Paragraph Six declares:
Equitable social development that recognizes empowering the poor to utilize environmental resources sustainably is a necessary foundation for sustainable development. We also recognize that broad-based and sustained economic growth in the context of sustainable development is necessary to sustain social development and social justice.48

UNDRIP, supra. Previously, International Labor Organization Convention No. 169 was the leading and most explicit international law instrument specifically focused on the rights of indigenous and tribal peoples. See http://www.ilo.org/ilolex/convde.pl?169 (last accessed Oct. 30, 2011). The Convention for the Elimination of All Forms of Racial Discrimination has also been interpreted in some instances as, among other things, benefiting indigenous peoples and some other local communities. See http:// www2.ohchr.org/english/law/cerd.htm (last accessed Oct. 30, 2011). 45 Convention No. 107 has been ratified by 27 countries; Convention No. 169 has been ratified by 20 countries. See http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm and http://
44

www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm (last accessed Oct. 30, 2011).

The two conventions, especially the provisions on land, territories and resources, have a wide coverage and are similar. ILO Convention No. 107 assumed the eventual integration of indigenous and tribal peoples. Convention No. 169 does not. 47 See http://www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml (last accessed Oct. 30, 2011). 48 U.N. Doc A/CON.166/7/Annex, available at http://www.sd-commission.gov.uk/events/apr01/ unpack. (last accessed Oct. 30, 2011).
46

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Two years later, in 1997, the UN General Assembly reiterated the premise enunciated in Copenhagen as it adopted a program for further implementation of Agenda 21. It stressed anew that Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development. Sustained economic growth is essential to the economic and social development.49 The Rio plus ten gathering in Johannesburg in 2002 again reiterated support for a tripartite approach in its Declaration on Sustainable Development.50 The concept of environmental justice embraces a special concern for precariously situated local communities, more commonly referred to as vulnerable populations. The second United Nations Conference on Human Settlements (Habitat II) in an internationally negotiated agreement reemphasized the importance of vulnerability,51 as have more recent studies examining the linkages between vulnerable

See Section III, A, para. 23 of the Resolution Adopted by the General Assembly, available at http:// www.un.org/documents/ga/res/spec/aress19-2.htm (last accessed Oct. 30, 2011). 50 Available at http://www.un.org/events/wssd (last accessed Oct. 30, 2011). 51 U.N. Doc A/CONF 165/15 Annex, available at http://www.agora21.org?habitat2/a01a.html (last accessed Oct. 30, 2011).
49 52

R. Mearns and A. Norton (eds.), Social Dimensions of Climate Change: Equity and Vulnerability in a Warming World, Washington D.C.

Article 8(j) of the Convention provides that Each Contracting Party shall, as far as possible and as appropriate subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practice (emphasis supplied). See http:// www.cbd.int/convention/ (last accessed Oct. 30, 2011). 54 http://unccd.int/convention/text/convention.php (last accessed Oct. 30, 2011). Part III, Article 10, (f) obligates state signatories to provide for effective participation at the local, national and regional levels of nongovernmental organizations and local populations, both women and men, particularly resource users, including farmers and pastoralists and their representative organizations, in policy planning, decision-making, and implementation and review of national action programmes (emphasis supplied). 55 The Aarhus Convention mandates wide access within Europe to environmental information, participation and justice. See http://www.unece.org/env/pp/documents/cep43e.pdf (last accessed Oct. 30, 2011).
53

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populations and climate change.52 These definitions, as well as increased success by advocates for indigenous peoples and other local communities, and environmental justice are evident in many international instruments such as the Convention on Biodiversity,53 the Desertification Convention,54 and the Aarhus Convention.55 These instruments reaffirm the vital role of local communities in promoting sustainable development and environmental justice.56 This emerging new norm is likewise evident within international environmental organizations and their affiliates. For example, the World Wildlife Fund (WWF), citing UNDRIP, has proposed principles for environmental program management that include a mandate to recognize and respect customary rights to lands, territories and resources of indigenous and other local communities. The Conservation Initiative on Human Rights includes WWF and seven other major international environmental organizations. The conservation principles agreed to include respect for human rights. Member organizations are committed to make special efforts to avoid harm to those who are vulnerable to infringements of their rights and to support the protection and fulfillment of their rights within the scope of our conservation programmes.57 In many local situations the most desirable and appropriate outcome is for nationstates to provide for the legal recognition and demarcation of areas covered by native/ aboriginal title. Legal recognition should typically not be limited to individual plots, but encompass an array of different and often overlapping community-based property rights (CBPRs), including individual, family and group rights. Especially in regards to original, long-term occupants, i.e., indigenous peoples and some other local communities,

Adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4 September 2002; for the discussion, see chap. VIII of the Summit Report. See http://www.un.org/ events/wssd (last accessed Oct. 30, 2011). 57 Jenny Springer, WWF Director, Rights and Livelihoods, Rights Principles and Safeguards in REDD+ - NGO approaches. Paper presented at a RRI Workshop, May 12, 2010, Washington, DC. Supra note 25. 58 Supra note 21. See also Owen Lynch, Concepts and Strategies for Promoting Legal Recognition of Community56

Based Property Rights: Insights from the Philippines and Other Nations [ital], in COMMUNITIES AND CONSERVATION: HISTORIES AND POLITICS OF COMMUNITY AND CULTURAL RESOURCE MANAGEMENT, (P.L. Brosius, A.L. Tsing, C. Zerner, eds., 2005); A. White and A. Martin, WHO OWNS THE WORLDS FORESTS? FOREST TENURE AND PUBLIC FORESTS IN TRANSITION, Forest Trends and Center for International Environmental Law (2002).

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their legal rights to land and other natural resources should be considered as private group rights. These CBPRs encompass rights acquired pursuant to local customs and traditions. The existence of these rights is not contingent on any state grant, although state recognition is often desirable and increasingly mandated by international and national law.58 International law is also increasingly cognizant and supportive of nonState actors, including local communities, non-government organizations, indigenous and other local peoples organizations, church groups and other civil society institutions. These institutions likewise enjoy protections under international law and are key to building just, vibrant, sustainable and democratic nation-states, and crafting just norms and processes for local community-state interaction.

B. International Court and Tribunal Decisions


The appropriate role of international and regional courts in shaping and defining international law continues to develop and be debated. Regardless of ones position, it should be evident that the architecture for international government in the 21st Century is inexorably being defined by, among others, courts and other international institutions. Essential players in the process of articulation and definition include the International Court of Justice, and other regional international courts.

International Court of Justice (ICJ) Western Sahara: Advisory Opinion of 16 October 1975 The foremost adjudicator of international law is the International Court of Justice, based in The Hague, Netherlands. The ICJ Opinion on Western Sahara is an authoritative rejection of the notion that land occupied by indigenous peoples at the time European powers asserted sovereignty could be considered legally unoccupied, or terra nullius. In this advisory and precedent setting opinion, the ICJ held that the indigenous nomadic peoples in the Western (Spanish) Sahara had social institutions at the time of colonization and were entitled to exercise their right to self-determination

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based on their social coherence as a people. In addition, the ICJ determined that ancestral territories inhabited by nomadic peoples are not terra nullius and are not open to arbitrary state acquisition. This case brought an end to the legitimacy of the colonial concept of terra nullius. It rejected the invocation of terra nullius to usurp native titles through occupation of territories already inhabited by indigenous peoples, such as the peoples of the Western Sahara.59 The majority stated that:
Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers.

Inter-American Court of Human Rights60 Awas Tingni vs. Nicaragua61 This was the first case ever brought to the Inter-American Court concerning indigenous peoples property rights. An indigenous group in Nicaragua, the Awas Tingni, cited the Inter-American Convention on Human Rights,62 which includes the right to property, and claimed their rights had been violated by the arbitrary issuance of timber concessions to foreign corporations which overlapped their ancestral domain. The court held that Nicaragua must delimit, demarcate and title the lands belonging to the Tingni

59

975 ICJ 12, 37039 (1975), available at http://www.icj-cij.org/docket/

index.php?p1=3&p2=4&code=sa&case=61&k=69 (last accessed Oct. 30, 2011). More recently in 2010 the ICJ issued an advisory opinion on Kosovo concluding that local indigenous groups have a right in international law to declare their independence from subjugating neo-colonial states. See http://www.icjcij.org/docket/index.php?pl=3&p2=4&k=21&case=141&code=kos&p3=0 (last accessed Oct. 30, 2011). 60 http://cidh.oas.org (last accessed Oct. 30, 2011). See also http://www.corteidh.or.cr/ bus_temas_result.cfm (last accessed Oct. 30, 2011).
61

Caso de la Comunidad Mayagna (Sumo) Awas Tingni. Fondo, Reparaciones y Costas. Sentencia de 31 de Agosto de 2001. See http://hrlibrary.ngo.ru/iachr/E/tingni9-6-02.html. See also http:// www.cedha.org.ar/curiae1.html (last accessed Oct. 30, 2011).
www.hrcr.org/docs/American_Convention/oashr.html.(last accessed Oct. 30, 2011).

62

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community. It also recognized the tradition of communal land ownership among indigenous peoples and the connection between indigenous groups and the land they occupy. Awas Tingni v. Nicaragua is a landmark case decided by an international tribunal with legally binding authority. It found a government in violation of the collective land rights of an indigenous group within national boundaries. It is an important precedent for the rights of indigenous peoples in international law, and a precedent-setting decision within the Inter-American human rights system. On December 15, 2008, Nicaraguas Attorney General and other officials traveled to Awas Tingni to formally hand over title for some 73,000 hectares of their traditional homelands.63

Moiwana Village v. Suriname64 On November 29, 1986, soldiers of the National Army of Suriname surrounded the Maroon village of Moiwana and killed at least 30 people. The many wounded fled with other survivors, some forced to walk three of four days to safety in French Guiana. Efforts to investigate the massacre commenced in 1989 by the civilian police but soon floundered. In August 1990, the police inspector was shot dead and his body dumped near the office of the then-deputy commander of the military police. Other police officers assisting the inspector fled the country and were granted political asylum in the Netherlands. Until 1997, the survivors and their allies continued pressing for an investigation. A private prosecution procedure was initiated in 1996 and submitted to the Attorney General of Suriname who failed to respond, even to two requests from the Surinames judiciary. Concluding it was not possible to secure justice, the survivors filed a complaint with the Inter-American Commission on Human Rights. The Commission found Suriname in violation of the American Declaration and

Awas Tingi people finally receive land title from the Government of Nicaragua, http:// www.rightsandresources.org/blog.php?id=380 (last accessed Oct. 30, 2011). 64 2005 Inter-Am Ct. H.R. No. 145 (June 15) available at http://www.corteidh.or.cr/docs/casos/ articulos/ seriec_145_ing.pdf (last accessed Oct. 30, 2011). See also http://www.forestpeoples.org/ documents/law_hr/ suriname_iahcr_moiwana_summ_aug05_eng.shtml (last accessed Oct. 30, 2011).
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recommended that Suriname investigate the event, prosecute those responsible and compensate the survivors. It likewise opined that the massacre was a crime against humanity and violated international law. On June 15, 2005 the Inter-American Court ruled unanimously that Suriname had violated the human rights of over 100 members of the village of Moiwana, including Article 21 on the right to property of the American Convention on Human Rights65 and ordered Suriname to redress the violations. Article 21 of the Convention is of special relevance to a paper in international law and native/aboriginal title. It provides that: Everyone has the right to use land and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society; and, No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. Citing Article 21 the Court observed that the Moiwana community members may be considered as the legitimate owners of their traditional land; as a consequence, they have the right to use and enjoyment of that territory. It therefore ordered the Government of Suriname to:
adopt such measures are necessary to ensure the property rights of the Moiwana community in relation to the traditional territories from which they were expelled, and provide for the members use and enjoyment of those territories. These measures shall include the creation of an effective mechanism for the delimitation, demarcation and titling of said traditional territories.

65

http://www.hrcr.org/docs/American_Convention/oashr.html (last accessed Oct. 30, 2011).

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On June 15, 2005 the Court ruled unanimously that Suriname had violated the human rights of 130 named members of the village of Moiwana and ordered to Suriname to make things right, including under Article 21 of the American Convention on the right to property.

Saramaka v. Suriname66 The Inter-American Court went further in Samarka v. Suriname. Surinames Maroons are descendents of African slaves who rebelled against French and Dutch colonial regimes in the Americas. They are not identified as indigenous but are considered to be tribal, and fall under international law protections offered by the International Labor Organization (ILO) in Conventions Nos. 107 and 169.67 One of the largest groups of Maroons is the Saramaka who number around 55,000. About half of the Samaraka live in ancestral areas of Suriname as did their forebears for over two hundred years. Their society is organized into twelve Los, also referred to as clans or groups. Each member of the Samaraka community belongs exclusively to one Lo. The matrilineal Los are the basic unit of group ownership of land and other natural resources, in which individual and extended family units have subsidiary rights of use and occupation. Since the mid 20th century the Samaraka have been threatened by outside interests, including the Government of Suriname. In the 1960s the Dutch colonial government teamed up with Alcoa to construct a huge hydroelectric dam to provide energy for the nearby capitol city of Paramaribo and an Alcoa smelter. Soon after a new artificial lake covered almost half of the Samarakas ancestral domain and displaced an estimated 6000 inhabitants.68

2007 Inter-Am Ct. H.R. No. 172 (November 28) available at http://www.corteidh.or.cr/docs/casos/ articulos/ seriec_172_ing.pdf (last accessed Oct. 30, 2011). 67 Supra 45 and 46.
66

R. Price, Contested Territory: The Victory of the Saramaka People vs. Suriname, http://www.richandsally.net/files/Victory_of_Saramakas_vs_Suriname.pdf (last accessed Oct. 30, 2011).

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In 1996 logging operations commenced and the Samaraka were prevented by soldiers from the Suriname army from even accessing their gardens. They were told that the land now belonged to Chinese loggers who had received official concessions, including areas granted to the Samaraka by the Dutch in the Treaty of 1762. During the ensuing years the local communities began to organize and in 2000 filed a petition with the Inter-American Commission on Human Rights, which in turn requested in 2002 and 2004 that Suriname suspend all logging concessions and mineral exploration. The de facto injunctions slowed some logging activities but Suriname failed to comply with substantive remedial measures recommended by the Commission in March 2006,69 and the Commission referred the case to the Inter-American Court of Human Rights. The Court ruled in favor of the Samaraka. It concluded that Suriname violated the rights of the Samaraka under Article 21 of the American Convention70 by not adopting effective measures to recognize its communal property right to the lands it has traditionally occupied and used.71 It ordered Suriname to remove legal provisions that impede protection of the right to property of the Samaraka people and adopt, in its domestic legislation, and through effective and fully informed consultations with the Samaraka people, legislative, administrative and other measures needed to protected, through special mechanisms, the territory in which the Samaraka people exercises its right to communal property. The Court also recommended that Suriname repair the environmental damage caused by the logging concessions and make reparation and due compensation to the Samaraka people for the damage done by the violations established in this report.72

http://www.richandsally.net/files/Victory_of_Saramakas_vs_Suriname.pdf (last accessed Oct. 30, 2011). Supra note 62. 71 Paragraph 257. 72 Paragraph 260.1 and 3.
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Inter-American Commission of Human Rights (IACHR) Pehuenche and the Friendly Settlement with Chile A petition was filed before the Inter-American Commission in December 2002 on behalf of indigenous Pehuenche families in Chile. It sought reparations because the human rights of the Pehuenche people were being violated by the construction of several dams along the Bio-Bio River. The largest of these dams, the Ralco dam, would displace 700 Indians, the last group of Mapuche/Pehuenche Indians who continue their traditional lifestyle on ancestral lands. The IACHR obliged the Chilean government to negotiate a precedentsetting settlement that will be monitored by the Commission and involves: 1) a promise to attempt to reform Chiles constitution to secure the protection of indigenous rights; 2) compensation directly to the displaced families, including land, educational scholarships, and US$350,000 per extended family; and, 3) the creation of a Municipality whereby the Mapuche/Pehuenche will have local control over their ancestral domain.73 The Chilean government also committed to implementing several measures of more general application. The most important commitments were to: Strengthen national laws that guarantee respect for indigenous rights, including constitutional reform that would culminate in legal recognition of Chiles indigenous peoples; Ratify the International Labour Organisation (ILO) Convention 169 on indigenous peoples rights; and Improve and strengthen legal processes for delineating the territory of the Mapuche/Pehuenche people and ensuring their meaningful participation in official

See http://www.ciel.org/Hre/hrecomponent2.html. See also M.Orellana (last accessed Oct. 30, 2011), Indigenous Peoples, Energy and Environmental Justice: The Pangue/Ralco Hydroelectric Project in Chiles AltoBioBio, mimeo. (2004).
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development processes, including the creation of a municipality in the Upper BoBo The friendly settlement provides for Pehuenche families to receive reparations for relinquishing their legal rights to natural resources that will be flooded by the dams. For the Pehuenche, reparations symbolize the responsibility of the Chilean government under international law for human rights violations they have suffered. The families gained recognition of their rights over lands, technical support to promote agricultural productivity, educational scholarships, and monetary compensation in the order of US$300,000 per family. In turn, they agreed to transfer their rights to ancestral lands and to discontinue legal action. African Commission on Human and Peoples Rights74 The African Commission on Human and Peoples Rights is tasked to formulate and lay down principles and rules aimed at solving legal problems.75 On February 4, 2010 the Commission ruled that the eviction of the Endorois people for tourism development violated their human rights. The violation of indigenous land rights over generations, including illegal displacement in Kenya and beyond, was not totally resolved in the decision. The African Commission found that the Kenyan government continues to rely on colonial laws that prevent some local communities from gaining legal recognition of their customary property rights, but allowed others, such as local authorities to obtain legally recognized rights over indigenous areas, ostensibly in trust for the local communities. The

On May 27, 2009 the Commission declared Southern Cameroonians a people, the culmination of a six year struggle against the Republic of Cameroon, See Andrew Maki, Collective Rights but no Independence for Southern Cameroons, http://hrbrief.org/2010/01/collective-rights-but-no-independence-for-southerncameroons-2/ (last accessed Oct. 30, 2011). 75 Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. See also Indigenous Peoples in Africa: The Forgotten Peoples?, http://www.achpr.org/english/Special%20Mechanisms/Indegenous/ ACHPR%20WGIP%20Report%20Summary%20version%20ENG.pdf (last accessed Oct. 30, 2011).
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Endorois trust, however, had been arbitrarily ended by local officials who then seized the ancestral property.76 The Commission condemned the expulsion of the Endorois people from their ancestral domains near Lake Bogoria National Reserve, Kenya. It is a precedential victory for indigenous and some other local communities in Africa and beyond.

II. International Customary (Comparative/National) Law and Property Rights


A. 21st Century Colonial Legacies of Government Ownership An often overlooked factor behind enduring laws in regards to modern land and natural resource ownership concerns the impact of tenacious colonial legal legacies. These legacies within national contexts typically commenced with the usurpation by colonial regimes of indigenous peoples and other local CBPRs. Beginning in the early 16 th century, Hernando Cortez and his minions and successors had profound effect on indigenous communities in what is now Mexico and eventually throughout Latin America and as far as the Philippines. Vast areas of indigenous territory in the Americas and beyond were arbitrarily usurped, in legal theory if not always fact.77 Ironically, many colonial laws decreed by the Spanish and Portuguese Crowns were ostensibly on behalf of native populations, and eventually covered all Latin America. Meanwhile, throughout North America and Africa the ancestral domains of indigenous peoples and First Nations were also legally usurped by the colonial laws and practice of European, and subsequently American and African, soldiers and their compatriots. In Asia during the 1860s, beginning in Ceylon (Sri Lanka today), an extraordinary wave of similar arbitrary and ostensibly legal usurpations inspired

Meet the Endorois - a closer look at the everyday lives of members of the community, http:// www.minorityrights.org/7407/trouble-in-paradise/meet-the-endorois.html (last accessed Oct. 30, 2011). 77 See, e.g., K. Hite, K. Hite, Back to Basics: Improved Property Rights Can Help Save Ecuadors Rainforests [ital], 16 Geo. Intl Envtl. L. Rev. 763 (2004).
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by British forestry laws were enacted. This development moved steadily eastward through India, Burma, Thailand, Cambodia, Vietnam, Malaysia, Indonesia and the Philippines.78 By the dawn of the 20th century almost all territory in European colonies was legally owned by the colonial powers. Similar so-called legal usurpations subsequently swept through East, West and southern Africa. Until the mid-20th century, there was little pretext of notice or legal process. Millions of human beings, many whose ancestors for generations had maintained and protected forests, including the carbon within trees, were arbitrarily deemed to be squatters on colonial government land, regardless of length of occupancy. In many now politically independent nations there is all too often still no notice or legal process, let alone legal recognition of ancestral-domain rights. Nascent, albeit restrictive, on-the-ground indicators of more participatory legal approaches to forest management were evident in southern Africa and Asia by the late 1970s; they include Indias Joint Forest Management, the Philippines Integrated Social Forestry and Zimbabwes CAMPFIRE programs.79

B. New Standards in International Customary Law (listed alphabetically and by global regions) The following national examples from fourteen nations (a major decision by Indias Supreme Court is pending) and four international law-making institutions, are not intended to be exhaustive, or completely up to date. Rather, they provide proof that a growing number of nation states are moving to toward legal recognition of indigenous peoples and some other local communities CBPRs, and in particular native/aboriginal title.
O. LYNCH and K. TALBOTT, BALANCING ACTS: NATIONAL LAW AND COMMUNITY BASED FOREST MANAGEMENT IN ASIA AND THE PACIFIC (World Resources Institute, 1995). 79 Although providing for a greater degree of local participation and benefit sharing than was previously allowed, these programs retain state (public) ownership and control. A decision on the constitutionality of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, which would change the legal environment in India, was pending as of May 2010. 80 L. Wiley, Can the continent find solutions to its colonial land legacy?, ITTO Tropical Forests Update, Vol. 19, No. 2 at 10, Table 1 (2009).
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For example, since 1968 eleven African nations have recognized customary rights as including property rights in their constitutions and/or land laws, all but one since 1986.80 A research report in 2008 concluded that The overall trend in law and policy has been toward an increased recognition of the role that communities play in forest management and their historical rights to territories. It identified policy and law developments that Strengthen community tenure rights in eighteen nations, including Cameroon, China, Brazil, Kenya, Mali and Tanzania.81 A tropical forest tenure assessment in 2009 reported that 18% of forest land in 30 tropical forest countries is now privately owned by indigenous peoples and some other local communities, an increase from 15% in 2002. 82 Taken together, these facts, the previous discussion of international law and principles, and the following summaries of national-level legal developments, provide further proof that international law now mandates legal recognition of native/aboriginal title and other private community-based property rights (CBPRs). They are multi-facetted examples of the evolution of international law in favor of environmental justice, including recognition of native/ aboriginal title.83 Africa Botswana The Botswana High Court on December 13, 2006 ruled that more than 1,000 Kalahari Bushmen had been unconstitutionally evicted from their ancestral hunting grounds and had the right to return. The court ruled that they were wrongly evicted by the Botswanan government several years earlier. Supporters of the Bushmen - traditional hunter-gatherers whose proper name is the San - accused the government of evicting them to exploit diamond and mineral wealth on their reserve.

W. Sunderlin, J. Hatcher and M. Liddle. From Exclusion to Ownership? Challenges and Opportunities in Advancing Forest Tenure Reform, Washington, DC: Rights and Resources Initiative (2008), pp. 26-28. 82 TROPICAL FOREST TENURE ASSESSMENT: TRENDS, CHALLENGES AND OPPORTUNITIES, at 12-13 (Rights and Resources Initiative, 2009). 83 The following discussion of domestic/national law is solely arranged alphabetically by region, and not by strength of reasoning or potential importance to international law.
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A panel of judges ruled that the San were illegally moved from their ancestral domain in the Central Kalahari Game Reserve. After a 2-1 ruling, Judge Mpaphi Phumaphi, who delivered the swing vote, said the government had forced them out of the reserve by depriving them of their livelihood. In my view, the simultaneous stoppage of the supply of food rations and the stoppage of hunting licenses is tantamount to condemning the remaining residents to death by starvation, he said. The case marks the first time a modern, post-colonial national African court has recognized the ancestral domain rights of indigenous people. It is also a precedent setting case linking land rights to cultural sustainability and the right to life. Implementation of the decision, however, has been problematic.84 More recently, on July 21, 2010 the High Court crippled its previous decision and held that the Bushman did not have a right to use an already stabled well on their traditional land, or excavate a new one. The African Commission on Human and Peoples Rights was quick to respond on August 10. The Commission urged the Government of Botswana to embrace the spirit of the 13 December 2006 ruling of the High Court by allowing Bushmen to access their own water using the pre-existing borehole.85 South Africa Richtersveld Community v Alexor Limited v. the Richtersveld Community86 The Richtersveld community is part of a larger group, the Nama people, who are descended from Khoikhoi- and San-speaking people. Their ancestral area was

See February 2010 Advance Report of the UN Special Rapporteur on Indigenous Rights calling on the Botwana Government to do more for Botswanas non-dominant indigenous tribes. http:// www.un.org/apps/news/ story.asp?NewsID=33889&Cr+indigenous&Cr1 (last accessed Oct. 30, 2011). See also http://survivalinternational.org/tribes/bushmen (last accessed Oct. 30, 2011). 85 Press release on the situation facing the Bushmen of the Central Kalahari Game Reserve in Botswana, http:/ /www.achpr.org/english/Press%20Release/press%20release_bushman_botswana.htm (last accessed
84

Oct. 30, 2011).


86

http://www.lrc.org.za/judgments/149-2004-04-29-richtersveld-judgment-cc (last accessed Oct. 30, 2011).

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inhabited long before the first colonists, the Dutch, arrived at the Cape in 1652. In 1847, the British Crown annexed the area including land which would become the subject of the Richtersveld claim. Following annexation, the Richtersveld people continued to live on their land until 1925, when diamonds were discovered. Beginning that year, the Government issued licenses to dig for diamonds to third parties, and as more licenses were awarded, the Richtersveld people were gradually denied access to more and more of their ancestral domain. In 1957, a fence was erected around the entire area, denying the Richtersveld natives any access. Between 1989 and 1994 all legal control of the enclosed area was vested in Alexkor Limited, a Governmentowned company which continued to mine for diamonds. The Richtersveld community argued that when their dispossession began in the 1920s, they possessed a property right to the land based on aboriginal title. They argued that this title survived annexation and existed as a burden on the Crowns title. Their dispossession, founded upon a notion that the Richtersveld people were too uncivilized to possess recognizable legal rights (see Western Sahara above), was ethnically and culturally discriminatory. The Land Claims Court rejected these arguments, and the Richtersveld community appealed to the Supreme Court of Appeal (SCA).87 The SCA unanimously overturned all of the critical findings made by the land court. It found that at the time of annexation, the Richtersveld people had a communal customary law interest whose source was the traditional laws and customs of the Richtersveld people. The Court noted the similarity between this customary law interest and aboriginal title. The Court then cited passages from Australias Mabo v Queensland decision (see below), which among other things emphasized two important principles. First, a change in sovereignty alone does not destroy pre-existing property rights. Second, the principle expressed in In re Southern Rhodesia that some Indigenous people are not sufficiently civilized to have recognizable property rights was rejected ala Western

http://www.lrc.org.za/Docs/Judgments/Richtersveld_v_Alexor.pdf (last accessed Oct. 30, 2011). See generally, www.supremecourtofappeal.gov.za (last accessed Oct. 30, 2011).
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Sahara. The Court adopted these principles and found that the Richtersveld peoples customary law land rights survived annexation. Finally, the Court held that the Governments failure to recognize the Richtersveld peoples rights in land (on the ground of insufficient civilization) after diamonds were discovered was discriminatory. As such, the Richtersveld people were entitled under the Restitution Act to both restitution and legal recognition of their ancestral domain rights. The Americas Belize On 18 October 2007, the Supreme Court of Belize ruled in Cal v. Attorney General88 that the national government must recognize indigenous Mayans customary tenure to land and refrain from any act that might prejudice their use or enjoyment of their ancestral domain. The landmark ruling was a victory for indigenous Mayan communities throughout Belize. The High Court ordered the government of Belize to determine, demarcate and provide official documentation of Santa Cruzs and Conejos [two Mayan villages] title and rights in accordance with Maya customary law and practices. It also ordered the government to desist from any logging, mining or other resource exploitation projects on Mayan land. The decision was the first judgment rendered with reference to the 2007 UN Declaration on the Rights of Indigenous Peoples. In 2001, the Belize government began giving rights to logging, oil, and hydroelectric interests on traditional Mayan lands, denying Mayan farmers access to their ancestral domains. In the decision, the Chief Justice of Belize stated that British colonial and subsequent acquisition of land in Belize did not abrogate the Mayan peoples primordial rights to their land.

Claims Nos. 171 and 172 (2007). See www.law.arizona.edu/depts/iplp/advocacy/maya_belize/ documents/ClaimsNos171and172of2007.pdf (last accessed Oct. 30, 2011).
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As such, the Court upheld that the Maya people live, farm, hunt and fish; collect medicinal plants, construction materials and other forest resources; and engage in ceremonies and other activities on land within and around their communities; and that these practices have evolved over centuries from patterns of land use and occupancy of the Maya people. The Supreme Court found that the Mayans had a complex traditional set of land tenure regulations. Furthermore, all attempts to divide up the customary village land into arbitrary-sized parcels are doomed to fail to establish a stable land-tenure regime because the Mayan lifestyle requires access to a variety of land types in order to grow and gather all the crops and resources they need to survive in any given year. The Court also held that Mayan rights to occupy their lands, farm, hunt and fish pre-date European colonization and remain in force today. The decision noted:
A mere change in sovereignty does not extinguish native title to land. Extinguishment or rights to or interests in land is not to be lightly inferred.

Referring to Delgamuukw v British Columbia (see below), the High Court observed that Indigenous title is now correctly regarded as sui generis. In other words, the very fact of Original Peoples having inhabited a land over time confers land title rights to them. It cited the Belizean Constitution and several international legal precedents that affirmed the existence of indigenous peoples collective rights to their land and other natural resources. While stating that the DRIP is non-binding, the Court averred that principles of general international law contained in the declaration should be respected. Moreover, it noted that the DRIP was adopted by an overwhelming number of states thus reflecting the growing consensus and the general principles of international law on indigenous peoples and their lands and resources. Brazil The Brazilian Constitution and national legal framework provides for a unique proprietary regime over the Brazilian Indians land...which reserves to Brazilian Indians the

Memorandum to the Katoomba Group by R. Sales. V. Otsubo and P. Frederrighi, Trench, Rossie Watanbe Advogados associated with Baker and Mackenzie International (mimeo.), November 13, 2008.
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exclusive use and sustainable administration of the demarcated lands as well as the economic benefits that this sustainable use can generate.89 The 1988 constitution includes a so-called Indian Chapter that enumerates the nature and extent of indigenous rights. The constitution for the first time recognized the existence of collective rights and acknowledged the legitimacy of community-based indigenous autonomy and social structures. The Brazilian Constitution states that Land traditionally occupied by Brazilian Indians are those that they have occupied and permanently possessed and they shall have the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein (emphasis supplied).90 A recent study concluded that these rights extend to carbon in trees located on Indian land.91 In 2009 Brazils Supreme Court sided with indigenous peoples in land disputes in Amazonia that have been called critical for determining the future of an area of rainforest the size of Western Europe. The decision formally puts the 1.7 million hectares Raposa Serra do Sol Indigenous Reserve under legal control of indigenous Amazonians, despite a handful of large-scale farmers who also are expanding in the northernmost reaches of the Amazon Jungle bordering Venezuela. The decision ordered all non-indigenous residents (including industrial rice farmers) to vacate the reserve.92

Chapter VIII, Article 231, para. 2. Article 24 of the Indians Statute states that results of natural resource exploitation shall belong to the Indians. Ibid. 91 Supra note 91. 93 Citing a report by Instituto Socioambiental (http://www.socioambiental.org) at http://www. internationalrivers.org/blog/glenn-switkes/raposa-serra-do-sol-pyrrhic-victory-indigenous=peoplesbrazil. (last accessed Oct. 30, 2011).
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It also imposed nineteen conditions on local indigenous peoples rights to use and manage their lands that could have negative impacts on their rights in the future.93

Canada Delgamuukw v British Columbia94 In this landmark decision on the nature and scope of aboriginal title, the Supreme Court of Canada held that absent a valid extinguishment, indigenous people have sui generis, aboriginal title to the land they exclusively occupied prior to the establishment of British colonial sovereignty, and aboriginal title is protected by the Constitution of Canada. The court recognized a special fiduciary duty between the British Crown and aboriginal peoples. For its part, the Canadian government has the duty to consult in good faith, addressing the concerns of the peoples whose ancestral domain rights are at issue. While aboriginal rights in Canada have also been bolstered in recent years by a number of court decisions, the 1997 Delgamuukw ruling is by far the most significant. It represents the culmination of a long process of legal empowerment for First Nations. The decision is significant in that it not only recognizes aboriginal title, it lays out the means by which the existence of aboriginal title could be proven and recognized, even through the use of oral histories. Whereas previous courts had discounted the

3 S.C.R. 1010 (1997), available at http://www.csc.lexum.umontreal.ca/en/1997/1997rcs3-1010/ 1997rcs3-1010.html (last accessed Oct. 30, 2011). 95 Delgamuukw, at 76 96 Delgamuukw, at 36. For analysis see G. Pechlaner and D. Tindall, Changing Contexts: Environmentalism, Aboriginal Community and Forest Company Joint Ventures, and the Case of Iisaak, http://courses.forestry.ubc.ca/Portals/35/docs/cons%20503%202006/tindalll/ Pechlaner%20and%20Tindall%20Draft07.doc (last accessed Oct. 30, 2011).
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use of oral history in making claims (essentially crippling the ability of some indigenous groups to raise such claims), the court ruled that the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with.95 The Delgamuukw decisions other significant feature is that it provides guidance for the adjudication and recognition of aboriginal title. Previously it had been acceptable practice for commercial resource extraction to continue unhindered throughout ancestral domains while claims were contested in Canadian courts. Pursuant to Delgamuukw, resource extraction can no longer take place without consideration of aboriginal rights and title. There is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere consultation.96 Major legislative advances concerning vast areas of aboriginal territories in Canada have also occurred, although there remain many disputes regarding implementation. These include the Nunavik Inuit Land Claims Agreement of 199397 and the Labrador Inuit Land Claims Agreement of 2005.98 Chile As discussed above in the section on International Court and Tribunal Decisions, the Inter-American Commission (IACHR) obliged the Chilean government to negotiate a precedent-setting settlement that will be monitored by the Commission and involves: 1) a promise to attempt to reform Chiles constitution

Available at http://www.nucj.ca/library/bar_ads_mat/Nunavut_Land_Claims_Agreement.pdf (last accessed Oct. 30, 2011). 98 Available at http://www.laa.gov.nl.ca/laa/liaclaims/default.htm (last accessed Oct. 30, 2011). For background, analysis and updates of these and other agreements with Canadian First Nations see Land Claims Agreement Coalition, http://www.landclaimscoalition.ca (last accessed Oct. 30, 2011). 99 See Pehuenche and the Friendly Settlement with Chile in Part I B above.
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to secure the protection of indigenous rights; 2) compensation directly to the displaced families, including land, educational scholarships, and US$350,000 per extended family; and, 3) the creation of a Municipality whereby the Mapuche/ Pehuenche will have local control over their ancestral domain.99 Nicaragua As also discussed above, Awas Tingni v. Nicaragua is a landmark case decided by an international court with legally binding authority. The Inter-American Court of Human Rights found a national government in violation of the collective land rights of an indigenous group within national boundaries. It is an important precedent for the rights of indigenous peoples in international law, and it remains a precedentsetting decision within the Inter-American human rights system. Suriname Two other landmark and precedent setting decisions by the Inter-American Court involved Suriname and they too have been discussed above: Moiwana Village v. Suriname and Saramaka v. Suriname. The Saramaka decision recognized aboriginal titled owned by people who were not thought of as being indigenous (despite over 200 years of original occupancy!) but were considered tribal. United States Johnson vs. MIntosh For all the atrocities and injustices inflicted on indigenous peoples in what is now the United States of America, the natives, despite the discovery doctrine were not deemed to be mere squatters on land owned by the US Government. Although indigenous rights, including native/aboriginal title were always subject
21 US Reports 543 (1823). See e.g., N.J. Newton, Federal Power over Indians: Its Sources, Scope and Limitations [ital.], U. Pa. L. Rev. Vol. 132 (1984). There is an extensive body of literature in the U.S. on tribal sovereignty and aboriginal title.
100 101

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to extinguishment by the US Congress, in many cases that never occurred. Rather, under the auspices of the US Supreme Court native/aboriginal title was always acknowledged to exist. In Johnson vs. MIntosh the US Supreme Court held in 1823 that Native Americans had, at minimum, rights of occupation to their ancestral domain, although those rights could only be sold to the US Government.100 Tribal jurisdiction over native ancestral domains in the USA, however, is defined as all land within the limits of Indian reservations. Since the 1970s the US Supreme Court has been engaged in apparent efforts to limit the scope of property rights held by Native Americans. The US Government is deemed to be the trustee regrettably a not always faithful oneor guardian of Native Americans. Perhaps of most importance to this paper, Native Americans are not legally deemed to be squatters within their recognized ancestral domains (reservations). 101 Asia and the Pacific102 Australia Mabo v. Queensland103 This ground-breaking and globally influential decision was based on findings of fact made by the Supreme Court of Queensland: that the Murray Islanders had a strong connection to the islands and regarded the land as theirs. All of the judges, except one, agreed that: there was a concept of native title within British common law;

Within the past year the Uttar Pradesh state government invoked the 2006 Indian Forest Rights Act and recognized ownership rights over 3258 acres held by tribal peoples. A. Tripathi, UP tribals get forest land ownership, THE TIMES OF INDIA, December 22, 2009. A decision on the constitutionality of the act is pending as of October 2010 in the Supreme Court of India. See also Cambodia Indigenous People NGO Networrk (IPNN) The Rights of Indigenous Peoples in Cambodia (2010), http://www.elaw.org/node/5349 last accessed Oct. 30, 2011). See generally www.mabonativetitle.com.. 103 No. 2 (1992) 175 CLR 1, http://austlii.law.uts.edu.au/au/cases/cth/high_ct/175clr1.html (last accessed Oct. 30, 2011). See generally www.mabonativetitle.com.
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the source of native title was the traditional connection to or original, longterm occupation of land; the nature and content of native title as determined by the character of the connection or occupation under traditional laws or customs; and native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was readily evident. In an internationally landmark decision by the High Court of Australia on the nature and scope of aboriginal title, the court held like its counterpart in Canada that absent a valid extinguishment, aboriginal peoples have, sui generis, native title to land they exclusively occupied prior to the imposition of British colonial crown sovereignty. Furthermore, the government has a special fiduciary duty to legally respect and protect native/aboriginal title. The decision was another blow to the long-standing colonial notion of terra nullius.104 It recognized that the indigenous peoples of Australia have preexisting systems of law and rights. According to the High Court, these customary norms remained in force under the new sovereign, except where specifically modified or extinguished by legislative or executive action. The Court purported to achieve all this without altering the traditional assumption that the Australian land mass was settled. Instead, the rules for a settled colony were said to be assimilated by the rules for a conquered colony. The majority in Mabo decided that upon acquisition of sovereignty the Crown did not acquire an absolute title but a radical title, and radical title is subject to native title rights where those rights had not been validly extinguished. (Advocates of

A Latin expression derived from Roman Law and translated by European colonialists as empty land and land belonging to no one. See M.F. LINDLEY, THE ACQUISITION AND GOVERNMENT OF BACKWARD TERRITORY (Longmans, Green & Co. Ltd., 1926).
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native title, especially in Africa, are well advised to take note!) In other words, the court accepted that a modified doctrine of tenure operated in Australia, and that the law of tenure (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions). Where there had been a valid grant of fee simple by the Crown, however, native/aboriginal title would be legally extinguished according to Australian law. The Mabo decision presented many legal and political problems for the Federal Government and the states, including: a requirement to make provision for permitted future development of land affected by native title; establishing a process for the speedy and efficient determination of issues of native title. In response to the Mabo judgment and to potential and subsequent reactions, the Australian Federal Parliament enacted the Native Title Act of 1993.105 The law was amended in 1998 following the 1996 Wik decision.106 The Act established a statutory definition of native title and provided a means for establishing a Native Title Tribunal to determine native title, validate acts of recognition and provide for compensation. Malaysia Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor

See www.weblaw.edu.au/display_resource.phtml?WebLaw_Page=Native+Title (last accessed Oct. 30, 2011). 106 Wik Peoples v. Queensland, 187 CLR 1 (1996), http://www.austlii.edu.au/cgi-bin/sinodisp/au/ cases/cth/HCA/1996/40.html?query=wik%20and%20peoples (last accessed Oct. 30, 2011). Statutory pastoral leases under consideration by the court did not confer rights of exclusive possession on the leaseholders. As such, native title rights can co-exist depending on the terms and nature of a particular pastoral lease. 107 Malaysia Law Journal (MLJ), Vol. 1 at 418 (1997). 108 MLJ, Vol. 6 at 241 (2001). 109 MLJ, Vol. 2 at 591 (2002).
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In 1997 Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor107 established the concept of native title in Malaysian law. The decision was quickly followed by two others: Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors108, a case involving the logging of Iban forest land in Bintulu, Sarawak, and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,109 a case involving the taking of Temuan land in Sepang in conjunction with the building of the Kuala Lumpur International Airport. All three cases embraced the doctrine of native title and took significant steps to extend its boundaries. In Nor Anak Nyawai, the High Court recognized the indigenous communitys legal control over its communal forest land and enjoined further logging by a timber company, the defendant. In Sagong bin Tasi, the High Court recognized native title owned by the Temuans, an indigenous people of peninsular Malaysia. It determined that native title included not only usufructory rights described in Adong, but also ownership of at least a portion of the plaintiffs ancestral domain. The cases illustrated the markedly different legal obstacles facing the Orang Asli of the Malay Peninsula and the indigenous peoples of Sarawak and Sabah. In Nor Anak Nyawai, the decision rested on the High Courts assessment of Sarawaks extensive history of regulations on land use and whether they served to extinguish the plaintiffs claim to native title, which they did not.110

New Zealand On June 28, 2008, seven Maori tribes signed New Zealands largest ever settlement on grievances over the loss of land and fishery rights during European settlement in the 19th century. The US$319 million agreement is being recognized as

See Peter Crook, After Adong: The Emerging Doctrine of Native Title in Malaysia [ital], Journal of Malaysian and Comparative Law, Vol. 32 (2005), [url] (last accessed Oct. 30, 2011). http:// www.commonlii.org/my/journals/JMCL/2005/index.html. See also Borneo Research Institute http:/ /brimas.www1.50megs.com/ (last accessed Oct. 30, 2011). 111 http://www.legislation.govt.nz/act/public/2008/0099/latest/DLM1378405.html. 112 Historic forestry settlement redresses Maori land claims, http://www.rightsandresources.org/ blog.php?id=342. (last accessed Oct. 30, 2011).
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a breakthrough in reconciliation. It will transfer ownership of 435,000 acres (176,000 ha) of plantation forest and associated rents from the central government to seven North Island tribes, which include more than 100,000 people. Maori lands and forests were once legally protected by the founding Treaty of Waitangi, signed with European settlers in 1840, but huge tracts of land were later taken for settlement. The Maori have been pursuing grievance claims since the early 1840s. The Central North Island Forests Land Collective Settlement Act of 2008,111 known informally as the Treelords deal, restores land rights to the Central North Island Forest Iwi Collective, an organization made up of Maori iwi, or social units. Under the settlement, negotiated by the Office of Treaty Settlements, all rental and other income from the land will be held in a newly established trust holding company, whose shareholders are the Maori iwis.112 The Marlborough Sounds case has recognized the native title aspects of the New Zealand settlement. The Chief Justice of the New Zealand Court of Appeal found that Maori rights to the foreshore and seabed had never been clearly extinguished, and thus may still exist. These rights predate colonization and are not dependant on rights accrued under the treaty.113 Papua New Guinea (PNG) Approximately 97 percent of Papua New Guineas total land area is covered by undocumented, customary aboriginal rights that are legally recognized by the national government. (Similar situations exist in most Pacific Island nations.) This area encompasses the largest remaining rainforest/wilderness in the Asia/Pacific region, and the third largest in the world. It is also home to approximately 70% of the nations traditional communities.

Ngati Apa, et al v AG & Ors 19 June 2003 New Zealand Court of Appeal. O. Lynch and A. Marat, A Review and Analysis of National Laws and Policies Concerning Customary Ownership and the Conservation and Sustainable Development of Forests and other Biological Resources, Papua New Guinea Conservation Needs Assessment. Boroko: Government of Papua New Guinea Department of Environment and Conservation (1992).
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The PNG government has attempted over the past decades to register, and in some instances subordinate, customary rights to lands, forests and other natural resources.114 In 1998, for example, the government through a legislative act ostensibly acquired title to land belonging to the Maisin people without their knowledge or consent. It then leased 38,000 hectares (94,000 acres) in the Collingwood Bay area to two companies. These companies entered into an agreement with a Malaysian logging company to clear-cut the forests for the purpose of developing a palm oil plantation. The Maisin did not learn of these dealings until barges arrived in Collingwood Bay carrying bulldozers and other logging equipment in June of 1999. For the Maisin, this all-too-often surreptitious effort in PNG to illegally land grab customary property rights was stymied in May 2002 when a Judge of the National Court of PNG ruled that the government had illegally sold to private development and logging companies property rights to commercially exploit the customary land of the Maisin people. The court cancelled the Governments leases and issued an order enjoining the companies from entering the land without the written consent of the local communities. This decision legally empowered the Maisin to continue protecting their forests as they have for generations. They own over 200,000 hectares (500,000 acres) and have rejected the use of their ancestral domain for large-scale industrial logging or agricultural development.115 Philippines Cruz vs. Secretary of DENR The struggle in the Philippines to gain respect for the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) goes back many decades. The greatest legal accomplishment, supported by a broad-based civil-society movement,

See http://www.elaw.org/node/897 (last accessed Oct. 30, 2011). On May 28, 2010 the PNG Parliament enacted a new law that would protect corporations exploiting natural resources by prohibiting litigation related to environmental degradation and landowner abuse, thereby potentially undermining the indigenous, and typically undocumented, community-based property rights of PNGs local clans. A case is now pending in PNGs Supreme Court. See J. Hance, Papua New Guinea strips communal land rights protections, opening door to big business, June 30, 2010, available at http://news.mongaybay.com/2010/ 0630-hance_png_amendment.html. 116 Republic Act No. 8371(1997), available at www.humanrights.gov.ph/index.php?categoryid=34.
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was enactment of the 1987 Constitution of the Philippine Republic, its first ever promulgated without colonial or military manipulation. Building on several sections within the constitution, the Philippine Congress responded in 1997 by enacting the Indigenous Peoples Rights Act (IPRA).116 IPRA is another legal milestone in the global struggle to gain recognition of indigenous and other CBPRs. IPRA provides that rights of ownership and possession held by ICCs/IPs (aka tribal groups) to their ancestral domains shall be recognized and protected. This includes the inherent right to self-governance and self-determination, and respect for indigenous values, practices, institutions and CBPRs. Consequently, the state must guarantee the right of ICCs/IPs to freely pursue their economic, social and cultural development. The Republic of the Philippines is likewise obliged to prevent by law any form or coercion against ICCs/IPs. It shall also respect, recognize and protect the right of ICCs/IPs to preserve and protect their culture, traditions and institutions. All rights recognized under the IPRA shall be considered in the formulation and application of national plans and policies. The Philippine Supreme Court upheld the constitutionality of the IPRA in a landmark decision in December 2000.117 The National Commission on Indigenous Peoples (NCIP) is the government institution responsible for implementation.118 As of 2010, huge obstacles remain in terms of legally delineating, documenting and otherwise recognizing ancestral domains, primarily in terms of adequate funding and political will.

Cruz vs Secretary of Environment and Natural Resources, available at http:// www.sc.judiciary.gov.ph/jurisprudence/ 2000/dec2000/135385.html (2000). See also Carino v. Insular Government, 212 US Reports (1909) Land occupied since time immemorial is presumed to never have been public. 118 http://www.ncip.gov.ph/ (last accessed Oct. 30, 2011).
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Conclusion
Throughout the world the legal rights of indigenous peoples and some other local ancestral communities to native/aboriginal title have steadily been gaining recognition and strength. This important development is highlighted in this paper and an array of examples and evidence has been presented. In recent years there have been an extraordinary number of legally supportive developments on international and national levels. As such, it can now be credibly asserted that international law, including international customary law, mandates legal recognition of native/aboriginal title. Whether policy makers, political leaders and economic elites respect and implement this emerging and hopeful new international legal norm remains to be seen. Advocates for legal recognition, meanwhile, have reason to be hopeful. But there also remains much work to do. As this paper demonstrates, international law is more supportive of the legal recognition of native/aboriginal title than ever before. In most locales the on-the-ground global significance of this fact has yet to be established.

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CONSTITUTION ONSTITUTIONAL THE JUDICIAL REVIEW OF CONSTITUTIONAL THEORY AMENDMENTS: THE INSURANCE THEORY IN POST-MAR -MARC POST-MARCOS PHILIPPINES*
DANTE M. GATMAYTAN**

ABSTRACT The author argues that Ginsburgs insurance theory is applicable in the Philippine case, albeit with a slight twist. Instead of reflecting the interests of powerful politicians at the time of its drafting, the post-Marcos 1987 Constitution adopted stronger judicial review powers as a means of protecting democratic safeguards and strengthening judicial checks on the Executive to reinforce horizontal accountability. The insurance system came in the form of an empowered judiciary which was tested and proven when the Supreme Court, by exercising its power of judicial review, provided a forum to challenge constitutional amendments intended to benefit dominant political forces and acted as guardian of the Constitution.

Paper presented at the 2010 Meeting of the International Political Science Association Research Committee on Comparative Judicial Studies, Judicial Review as Insurance Policy: Horizontal and Vertical Accountability in Democratic and Transitional States, Bologna, Italy, June 21-23, 2010. ** Associate Professor, University of the Philippines, College of Law and Lecturer, Ateneo de Manila University, Department of Political Science; LL.B., University of the Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996, dante.gatmaytan@up.edu.ph. I am indebted to Sopfia Guira for the research assistance she provided.
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Introduction
In 1986 Corazon Aquino led a peaceful revolution that ended the authoritarian regime of Ferdinand Marcos sending him to exile in Hawaii. Widely popular and at the head of a revolutionary government, Aquino suspended the 1973 Constitution and was free to undertake any program without constraints from Congress, the courts, or a constitution.1 She replaced local officials with her own appointees and abolished the Marcos-dominated legislature. Aquino could have acted by decree and swept aside the vestiges of authoritarianism or carried out whatever programs she desired. Instead, she placed limits on her powers: she proclaimed an interim Constitution with a Bill of Rights which would be in effect until a permanent one could be adopted.2 Then she appointed a commission to write this new constitution. The Constitutional Commission empowered the judiciary so it could serve as an effective check on the President. Why would Aquino limit her own powers when she could have exploited her popularity to institute far ranging changes in government? Aquinos decision can be traced to a previous attempt to amend the Constitution. Marcos attempts at changing the constitution laid the foundations for authoritarian rule in the Philippines with the blessings of the Supreme Court. Aquino was taking steps to ensure that the judiciary can review constitutional changes and prevent the resurgence of authoritarianism. In this Article, I argue that judicial empowerment in the post-Marcos Philippines is an application of Ginsburgs insurance theory.3 While the insurance theory has been found inapplicable in many countries by recent studies, the Philippines may be the exemption. In the Philippines, the drafters of the constitution entrenched judicial review as a form of political insurance to give themselves a forum to challenge legislation and proposals to amend the Constitution.

R. W. Fontaine, The Philippines: After Aquino,19 ASIAN AFFAIRS 170, 172 (1992). C. H. Land & R. Hooley, Aquino Takes Charge, 64 FOREIGN AFFAIRS 1087, 1107 (1986). 3 T. GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003).
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Courts and Constitutional Amendments


I argue that the adoption of stronger judicial review powers in the post-Marcos Philippine Constitution was carried out as a means of protecting the democratic safeguards adopted by the framers of the 1987 Constitution and strengthening judicial checks on the Executive to reinforce horizontal accountability. The Philippine case will show that the insurance policy extends not only to the enactment of legislation that can have an adverse effect on the politically marginalized groups, but also to instances where constitutional amendment can have such a harmful effect on democratic values. The Philippine case is important for another reason. It shows the application of the insurance theory, not mere conjecture, through a Supreme Court decision. The insurance theory, in other words, was tested and proven when the Supreme Court exercised its power of judicial review over questions pertaining to constitutional amendment intended to benefit incumbents. The idea that constitutional amendments may be unconstitutional has long persisted in the literature. Scholars focus on the tension between an amendment and the spirit of the constitution (as in the case of India), or the tension between the amendment and other parts of the constitution (as in the case of Germany). Courts declare amendments unconstitutional even if that constitutional amendment fulfills the amendment procedures mandated by the constitutional textif the amendment violates the spirit of the constitution or the other provisions of the constitution. In fact there is a growing number of scholars who argue that there are substantive limits to the power to amend constitutions.4 The scholarly interest in unconstitutional constitutional amendments focuses on the substantive grounds upon which courts can nullify amendments. Scholars have suggested a number of limitations on the power to amend constitutions including: amendments that destroy or cripple the values of constitutional democracy, or contradict natural law and justice; amendments that repeal core constitutional freedoms or violate core human rights and deny the basis of equality; amendments that deny legal protections or equal status to some class of people or

See discussion in Dante Gatmaytan, Can Constitutionalism Constrain Constitutional Change?, 3 NORTHWESTERN INTERDISCIPLINARY LAW REVIEW 22(2010).
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violate constitutionally protected individual rights; amendments that create exceptions to rights included in the Bill of Rights, or those that would repeal them.5 Less examined is the relation between judicial review of constitutional amendment and the reasons for judicial empowerment. Judicial review of constitutional amendments may be intended by constitution drafters to provide a forum to challenge proposed constitutional changes or to maintain elite hegemony in the face of democratization. The Philippines offers an opportunity to analyze this relationship. In a span of thirty-three years the Philippine Supreme Court addressed two attempts to amend the Constitution. In 1973, it sanctioned the changes despite glaring lapses in procedures in amending the Constitution. The decision allowed Ferdinand Marcos to establish his authoritarian regime until he was deposed in 1986. In 2006, the Court ended a similar campaign primarily because of the failure to conform to constitutional procedures. As I will show here, the latter was the product of a new constitution designed to thwart a repeat of the 1973 ruling. The post-Marcos Constitution empowered the judiciary to provide horizontal accountability by serving as a stronger check on the Executive.

Authoritarianism and the Philippine Supreme Court


Ferdinand Marcos was elected President of the Philippines in 1965 and again in 1969. Because there was a constitutional ban on election to a third term, Marcos called a constitutional convention to change the Constitution. Among other things, he sought to change the form of the Philippine Government to a parliamentary system. On March 16, 1967, the Philippine Congress passed a resolution calling a convention to propose amendments to the Philippine Constitution. Marcos wanted the convention to either extend his term by two more years or to change the form of government from presidential to parliamentary. If the plan had succeeded, Marcos could have run as a member of parliament in his home province and, as leader of the majority party, could have assumed the role of Prime Minister.

Id. at 26-27. Dante Gatmaytan-Magno, Changing Constitutions: Judicial Review and Redemption in the Philippines, 25 UCLA PACIFIC BASIN LAW JOURNAL 1, 4 (2007).
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This would have enabled Marcos to stay in power indefinitely or at least as long as his party controlled Congress.6 Before the Convention could finish its work, Marcos placed the country under martial law and then pushed for the adoption of the new Constitution. However, instead of following the procedures laid down in the old Constitution, he created Citizens Assemblies in every barrio composed of all citizens over fifteen years of age. These assemblies were asked to vote on the Constitution, which was presented without opposition. Under the martial law regime, there was no free pressand no civil liberties. Marcos opponents and political commentators were either in detention or exile. These assemblies carried out the adoption of the Constitution where armed soldiers and policemen were in prominent attendance.7 The ratification was riddled with defects. The assemblies included minors. No official ballots were used because voting was done only by a show of hands, which violated the principle of secrecy. The Commission on Elections did not regulate the tabulation and counting of the votes. There were even claims that these assemblies were never convened and that the votes allegedly cast in these meetings were simply manufactured by the people of Marcos. Marcos also had clandestine meetings with some members of the Supreme Court even before martial law was declared and in the weeks before the 1973 Constitution was ratified.8 Suits questioning the legality of the ratification of the 1973 Constitution were filed with the Supreme Court. They challenged the Presidents power to create Citizens Assemblies and also argued that these assemblies did not have the power to approve the proposed Constitution. It was also argued that the President did not have the power to proclaim the ratification of the proposed Constitution. Despite the irregularities attending the use of the Citizens Assemblies, the Supreme Court in Javellana v. Executive Secretary9 looked the other way. While a majority of the Supreme Court members ruled that the Constitution was not validly ratified, the Court also ruled that the new Constitution was already in force, that it had come into effect through other means.10

Id. Id. at 5. 9 G.R. No. L-36142, 50 S.C.R.A. 30 (1973) 10 Because the Court contained eleven members at that time, seven votes were needed to declare any act unconstitutional. After six members of the Court concluded that the 1973 Constitution was not properly ratified, the Court went on to ascertain that the new charter was otherwise in force. The ten Justices of the Court (there was one vacancy at that time) voted as follows: four Justices believed the Constitution was in force and two believed that it was not. Four other Justices could
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Unable to oppose the President in the early days of martial law, the Justices of the Supreme Court had removed the judiciary from a position of great institutional significance in the Philippine polity by restricting its own scope and depth of decisionmaking.11 Long before the end of Marcos rule, the public respect formerly accorded the Supreme Court, as well as the Courts reputation for independence, had dissipated. By the time Marcos was deposed in 1986, the Court was regarded by many Filipinos as subservient to the President, and many believed that the Court had become a pliable instrument of the presidents will. Even the Supreme Court acknowledged many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect12 that would require time and effort to repair.13 Javellana marked the collapse of horizontal accountability and the demise of the integrity of the Supreme Court. The judiciary had become a tool of authoritarianism and was in serious need of repair.

Ginsburgs Insurance Theory


Ginsburg proffered this theory that the design of a constitution reflects the interests of powerful politicians at the time of its drafting. In his view, politicians who foresee themselves in power after the adoption of a constitution are likely to design institutions that will allow them to govern without constraint. This is

not tell whether the people had acquiesced to the Constitution and refused to cast a vote on the issue. Consequently, despite the fact that six Justices had ruled that the Constitution was not properly ratified, there were not enough votesonly two of the seven necessarysaying that the Constitution was not in effect. See Gatmaytan-Magno, supra note 6. 11 C. N. Tate, Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies, 46 POLITICAL RESEARCH QUARTERLY 311, 328(1993). 12 Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNAL at 7. 13 One author, Del Carmen, suggests that the Courts decision was designed to preserve its own existence: [T]he biggest beneficiary of the Courts decision was the Court itself. For while sparing the President the embarrassment of a major legal setback, it mustered enough courage to rebuke him, albeit gently, as if to remind the President that, martial law and the demise of Congress notwithstanding, checks and balances still existed through the judicial branch of government. The uncompromising posture taken by Chief Justice Roberto Concepcion and Justice Calixto Zaldivar against the President on all five major issues raised in the cases, and the majority vote against the President on the issue of the valid ratification of the new Constitution gave the countrys constitutionalists reasons to applaud and keep faith in the Courtor at least in some of its members.

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because dominant parties are likely to anticipate continued success in post constitutional elections and, therefore, to prefer majoritarian institutions. If they are likely to lose elections after the constitution is adopted, they seek to entrench judicial review as a form of political insuranceto give themselves a forum in which to challenge the legislature. Judicial review provides a forum of insurance to prospective electoral losers during the constitutional bargain. The key factor in explaining variation in the extent of judicial review in constitutional design is the structure of the party system and the configuration of political forces at the time of constitutional drafting.14 Ginsburg offers an alternative to Ran Hirschls15 hegemonic preservation thesis which suggests that legal reforms are only ever allowed by politicians and their allies in the judiciary. In Hirschls words:
legal innovators, that is, politicians, representing cultural and economic elites, in cooperation with the legal elite, determine the timing, extent, and nature of constitutional reforms. Legal innovations are, in other words, products of the interplay between hegemonic elites (and their political representatives) and the legal profession. Political actors representing hegemonic social and economic forces usually attempt to shape the legal system to suit their interests. To do so effectively in rule-of-law societies, they must secure the cooperation of the legal elite to whom the political elite often have close social ties. The changes that emerge reflect a combination of political and economic preferences and professional interests. To be sure, demands for constitutional change often emanate from various groups within the body politic, but if hegemonic political and economic elites, their parliamentary representatives, and the legal elite do not forecast gain from a proposed change, the change is likely to be blocked.16

More recently, he says that politicians are more likely to divert policymaking responsibility to a relatively supportive judiciary when present or prospective transformations in the political system seem to threaten their own political status and policy preferences. 17 To preserve their hegemony, the

TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES (2003). R. Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 LAW AND SOCIAL INQUIRY 91(2000). 16 Id. at 102. A similar theory has been advanced by Jodi Finkel in her study of Argentina and of Mexico. In both cases, Finkel argues that parties in power are likely to introduce judicial reforms when the probability of its reelection declines.
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influential sociopolitical groups may support the establishment of judicial review and the empowerment of constitutional courts. There are variations of theories that orbit the notion that political reasons prop the constitutionalization of judicial empowerment. Hirschl summarizes these theories:
In relatively open political settings, judicial empowerment may reflect the competitiveness of a politys electoral market or governing politicians time horizons. According to the party alternation model, for example, when a ruling party expects to win elections repeatedly, the likelihood of an independent and powerful judiciary is low. When a ruling party has a low expectation of remaining in power, it is more likely to support a powerful judiciary to ensure that the next ruling party cannot use the judiciary to achieve its policy goals. Scholars draw on this insurance logic to explain the variance in judicial power between Japan and the United States; between different periods in the late nineteenth-century United States; between three post-authoritarian Asian countries (South Korea, Mongolia, and Taiwan); between several polities in Eastern Europe and between new democracies in Southern Europe (Spain and Portugal); and between two Argentine provinces.18

Many recent studies test Ginsburgs theory but the results weigh heavily against it. These new studies show that judicial empowerment is motivated by factors other than the uncertain outcomes of political contests. A study of the experience of Latin America showed that multilateral constitution-making processes tend to establish institutional frameworks consistent with constitutionalism; independent and powerful judicial institutions are more likely to be created under these circumstances.19

18 19

Id. at 1351-1352. J. Ros-Figueroa & A. Pozas-Loyo, Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America, 43 COMPARATIVE POLITICS 293(2010).

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In the case of Brazil, in particular, evidence suggests that an independent judiciary may actually serve governmental interests. Incumbents can rely on courts to facilitate pursuit of policies when structural characteristics of the political system create barriers for policy implementation.20 Stated otherwise, judicial empowerment is often designed to improve the incumbents ability to implement their policy choices. The expansion of judicial authority depends not on the potential results of electoral contests but on whether electoral winners can extract benefits from independent courts.21 Hilbink22showed that it is not necessarily weak, pessimistic, or insecure political actors that seek to introduce or strengthen judicial review. Relatively secure or politically ascendant institutional designers may find good reasons to enhance judicial power. In his study of Spain and Chile, he showed that strong actors opted for the establishment of constitutional courts and the expansion of the judicial role when they wrote new constitutions in the late 1970s. They initiated judicial empowerment to build a regime that rejected a strong Executive and provide the basis of a united democratic front against the military. At the height of their power, authoritarian leaders in Chile enhanced judicial power at many levels. Such judicial empowerment was logical and attractive to them not only because of Chiles long tradition of adherence to legal forms, but also because of their understanding of adjudication as a technical or apolitical function, which rendered empowered courts integral to their mission of re-founding the Chilean political system on more rational and unitary grounds.23 Judicial empowerment in Peru was not fueled by political uncertainty or potential electoral loss. Rather, according to one study, it can be explained by the diffusion theory or as a consequence of the spread of the idea of judicial check on executive and legislative power after the Second World War. It is also explained

R. M. Nunes, Politics without Insurance: Democratic Competition and Judicial Reform in Brazil, 42 COMPARATIVE POLITICS 313, 313(2010). 21 Id. at 328. 22 L. Hilbink, The Constituted Nature of Constituents Interests: Historical and Ideational Factors in Judicial Empowerment,62 POLITICAL RESEARCH QUARTERLY 781(2009). 23 Id. at 782.
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as the product of a combination of a plural political environment and reasonable institutional design which included rules for the appointment of justices and for declaring laws unconstitutional.24 A study of judicial reforms in Mexico concluded that it was neither electoral uncertainty nor imminent electoral defeat that prompted judicial reform in the mid1990s. The governing Partido Revolucionario Institucional (PRI) faced a political defeat after the reform in the year 2000. Judicial reform, however, was passed and implemented almost simultaneously and shortly after President Ernesto Zedillos inauguration and not toward the end of his administration. It seemed that in Mexico, these reforms were carried out to pursue political legitimacy and was launched as a short-term attempt to secure votes. The project was developed while Ernesto Zedillo was campaigning for the presidency in a climate that called for improvements to the justice system. The PRI needed to send a message of change in the 1994 elections when it faced the possibility of losing a federal election for the first time in more than seventy years. Rather than securing its interests in the future, the reformers were trying to recover their legitimacy and the viability of their government by adapting to a democratizing context.25

E. Dargent, Determinants of Judicial Independence: Lessons from Three Cases of Constitutional Courts in Peru (1982-2007),41 JOURNAL OF LATIN AMERICAN STUDIES 251, 258(2009). 25 S. I. Oseguera, Judicial Reform in Mexico: Political Insurance or the Search for Political Legitimacy?, 62 POLITICAL RESEARCH QUARTERLY 753, 762(2009). Oseguera argues that the insurance policy argument fails to provide an explanation as to the domestic dynamics motivating reformers. She says that the insurance theory attributes the power to calculate political fortunes to political elites. Studying cases in which the researcher already knows that the reformers lost political control after reform does not mean they could foretell their fate. She also asserts that by focusing only on the present and future composition of elected branches, analysts may overlook other possible context-based and reformcontent interests of reformers. She claims too that trying to provide a single explanation for the motivations behind all parts of judicial reforms and all of an actors significant decisions in the process may lead to limited accounts.
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One study concluded that Turkeys Constitutional Court serves as an administrative attach of state elites in overseeing the political arena and transforming the society. As administrative agents, the ruling elite turn to courts not to safeguard their immediate interests, but to transform the society by extending the reach of the state. Shambayati and Kirdis26 argue that the post-1982 Turkish Constitutional Court should be conceptualized as an administrative agent assisting the military in simultaneously regulating the political society and transforming the nation. The military regime took direct control of the constitution-making process in the 1980s and appointed a small constituent assembly that excluded anyone with links to political parties or other organized groups. The membership in the Assembly was limited to military officers, law professors, and high-level bureaucrats appointed by the junta. The junta reserved the right to override the Assembly. The drafters of the constitution were guided by three principles. The 1982 Constitution assumes that the fundamental purpose of the state is thetransformation of the society. The original preamble stated that the constitution was prepared with the goal of ensuring that [the Republic of Turkey] attains the standards of contemporary civilizations, as a full and honorable member of the world family of nations. The assembly also set out to ensure that the State would not be controlled by private associations, and to ensure the dominance of the state over political institutions.27 Again, my view is that judicial empowerment in post-Marcos Philippines tweaks the insurance theory slightly. I suggest that in the euphoria that enveloped the removal of Marcos from power, the framers of the 1987 Constitution promoted judicial empowerment to create a strong check on the executive branch. The framers were concerned about a possible reprise of Marcos-era politics and established more formidable obstacles in the form of stronger provisions on judicial review and constitutional amendment. As the Philippine case will show, judicial review is available not only for the review of ordinary legislation. It can be invoked when constitutional amendments are challenged, particularly when amendments threaten to undermine democratic values

H. Shambayati& E. Kirdis, In Pursuit of Contemporary Civilization: Judicial Empowerment in Turkey, 62 POLITICAL RESEARCH QUARTERLY 767, 767-769(2009). 27 Id. at 773-774.
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enshrined in the Constitution. The framers of the constitution grafted judicial review into the fundamental law to thwart future attempts at constitutional change and to ensure horizontal accountability. Both Ginsburgs and Hirschls views cast doubt on the effectiveness of judicial review as a mechanism for horizontal accountability. Theoretically, under a liberal democracy with a system of separation of powers, the judicial branch functions as an effective, independent barrier against abuses of executive or legislative authority. The judiciary insures that the other branches exercise their authority within the law and protects the rights of citizens against the arbitrary exercise of power.28 Horizontal accountability is possible with the existence of state agencies that are legally empoweredand actually willing and able to take actions ranging from routine oversight to criminal sanctions or impeachment in relation to possibly unlawful actions or omissions by other agents or agencies of the state.29 When tainted with attempts to preserve political power as Ginsburg and Hirschl suggest, judicial review becomes ineffective as a horizontal check on political institutions. The Philippine case, however, will show that judicial empowerment in fact strengthened horizontal accountability.

M. Dodson & D. Jackson, Horizontal Accountability in Transitional Democracies: The Human Rights Ombudsman in El Salvador and Guatemala, 46 LATIN AMERICAN POLITICS & SOCIETY 1(2004). 29 G. ODonnell, Horizontal Accountability in New Democracies, 9 JOURNAL OF DEMOCRACY 112(1998).
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Writing the 1987 Constitution of the Philippines


Ferdinand Marcos fled to Hawaii after attempting to steal an election that was intended to provide him with a new mandate to helm the Philippines. His opponent in that election, Corazon Aquino assumed the presidency. Aquino announced that her government was a revolutionary government, and that she was taking power in the name of the people. She abolished the National Legislature and replaced most of the members of the Supreme Court.The reorganized Supreme Court recognized the Aquino government as de jure, later referring to Aquinos government as a revolutionary government.30 Aquino had unparalleled support among the people. Still she had to translate the peoples hopes and aspirations into the various articles of the Constitution to show that she was not assuming a dictatorial mode.31Aquino appointed a fifty-person commission to write a new constitution. Aquinos closest advisers selected its membersmostly lawyers close to the presidential camp. The Commission included two of the leaders of Aquinos campaign team, four members close to the Presidents family, while ten were members of the 1971 Constitutional Convention (four places were reserved for Marcoss New Society Movement and one for the pro-Marcos sect, the Iglesia ni Cristo). The final mix of former members of Congress, Supreme Court justices, representatives of the Catholic Church and the business community, guaranteed that the Commission would produce document that adhered closely to the pre-martial law institutional framework.32

Dante Gatmaytan, Its All the Rage: Popular Uprisings and Philippine Democracy,15 PACIFIC RIM LAW AND POLICY JOURNAL 1(2006).Aquino decided to discard the 1973 Constitution because of the cloud of dubious adoption. The decision also had practical consequences for her new administration. If Aquino retained the 1973 constitution, all officials elected or appointed under its provisions would have been entitled to keep their offices. These would include members of Marcos KBL party that enjoyed a majority in the National Assembly who could have stood in the way of any legislative program Aquino planned. Among the appointed officials were judges with tenure who could have blocked the confiscation of the ill-gotten wealth of Marcos and his cronies and who could have protected the Marcos subordinates accused of committing crimes. She would also have to respect the tenure of local officials from the KBL party who could have impeded her governments efforts to establish its rule outside the metropolitan area. See Land, 64 FOREIGN AFFAIRS 1087. 31 S. Maisrikrod, Changing Forms of Democracy in Asia? Some Observations on the Thai and Philippine Constitutions,23 ASIAN STUDIES REVIEW 356, 360-361 (1999). 32 J. Putzel, Survival of an Imperfect Democracy in the Philippines, 6 DEMOCRATIZATION 198, 210 (1999).
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The commission reflected the coalition that brought Aquino to powercivilsociety actors working beside the familiar members of traditional political society. Nearly half of its members reported having participated in mass actions in areas such as land reform, ethnic conflicts, and gender issues. Now charged with the drafting of a new constitution, the commission was eager to prevent another Marcos. Their reforms included term limits and constraints on presidential power to make it more difficult to declare martial law.33 The Constitutional Commission convened on June 2, 1986 with members from various fields and possessing divergent ideological beliefs. In a matter of months it held public hearings, regional consultations, and spent two months on floor debates. The commission finished a draft by October 15 and the plebiscite for the constitutions ratification was later held in February 1987.34 In the course of its work, the Constitutional Commission displayed a determination to prevent another Javellanathe Supreme Court decision that sanctioned Marcos constitutional change. The members of the commission devised a remedy that would prevent the executive from invoking the political question doctrine in cases where its actions are questioned. The innovation came in the form of a new provision that strengthened the judicial review:
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.

Former Chief Justice Roberto Concepcion, a member of the Constitutional Commission that drafted the constitution, explained that the change was a direct response to the judiciarys experience under the martial law. It is meant to prevent courts from invoking the political question doctrine in cases filed against the government. Concepcion explained that this practice encroached upon the rights of the people, and encouraged further violations during the martial law regime.

K. Eaton, Restoration or Transformation? Trapos versus NGOs in the Democratization of the Philippines, 62 THE JOURNAL OF ASIAN STUDIES 469, 476 (2003). 34 B. M. Villegas, The Philippines in 1986: Democratic Reconstruction in the Post-Marcos Era,27 ASIAN SURVEY 194, 202(1987). The Constitution was overwhelmingly ratified although scholars regularly claim that the campaign for the ratification centered more on President Aquinos popularity than on the merits of the draft charter. See Hernandez, 1988.
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Concepcion mentioned Javellana specifically during the Constitutional Commission debates. When suits were filed to declare the presidential proclamation declaring that the 1973 Constitution was null and void, the main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. After perusing the Records of the Constitutional Commission, the postMarcos Supreme Court concluded that judicial power is not only a power but a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. The 1987 Constitution now fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments.35

Applying the New Constitution


Gloria Macapagal-Arroyo became President of the Philippines in 2001 after Joseph Estrada was ousted from office by another popular uprising. Her administration, however, was also burdened with charges of corruption that she nearly became the third President to be ousted by massive demonstrations. Like Marcos before her, Arroyo attempted to amend the Constitution to change the form of government to a parliamentary government. Without the cooperation of the Senate, however, Arroyo could only change the constitution through an initiative. Local officials gathered signatures to amend the Constitution and filed a petition with the Commission on Elections (COMELEC) to schedule a date to allow voters to vote on the proposed constitutional changes. The COMELEC dismissed the petition, citing a 1997 decision of the Supreme Court in Santiago v. Commission on Elections.36 In Santiago a majority of the Supreme Court concluded that while the Constitution recognized the right to directly amend the Constitution, the people cannot exercise the right if Congress does not provide for its implementation. The Court permanently enjoined the Commission on Elections from entertaining or taking

35

36

Santiago v. Guingona, Jr., G.R. No. 134577, 298 S.C.R.A.756(1998) G.R. No. 127325, 270 S.C.R.A. 106 (1997).

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cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. The case was then elevated to the Supreme Court.37 The proponents of constitutional change were facing an uphill climb. They were seeking not amendments to, but a revision of the Constitution. And under the constitution, the initiative process is available only for amendments to, and not revisions of the Constitution. One other problem faced by proponents of constitutional change was the fact that the campaign to amend the Constitution was spearheaded by the government and not the people themselves. It was President Arroyo herself who asked Congress to revise the Constitution during her State of the Nation Address in 2005. Local governments were mobilized to gather signatures for the campaign. The Speaker of the House had been vocal about his support for a shift to a parliamentary form of government. The Solicitor General entered his appearance in support of the petition and against the COMELEC. The Government was funding the campaign to amend the Constitution. Except for the Senate, the entire government machinery seemed to have been mobilized to ensure the amendment of the Constitution. On October 25, 2006, the Supreme Court promulgated its decision in Lambino v. Commission on Elections.38 The Court dismissed the petition, although it was a sharply divided opinion at 8-7. The majority decision said that The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a peoples initiative.39 This glaring failure to comply with the Constitutions mandate was sufficient reason, according to the majority opinion, to dismiss the case.40 The majority held that the Petition did not comply with the provisions of the Constitution on initiative and that the proposed constitutional amendment should be ready and shown to the people before they signed any proposal. Thus, an amendment

Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNAL at 8-9. G.R. No. 174153, 505 S.C.R.A. 160 (2006). 39 Id. at 227. 40 Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNAL at 12-13.
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may be directly proposed by the people through initiative upon a petition only if the people sign on a petition that contains the full text of the proposed amendments.41 The Court also said that initiative violated the Constitution because the proposal constituted a revision of the Constitution and not a mere amendment. The Court explained that the framers of the Constitution intended and wrote a clear distinction between amendment and revision of the Constitution and a peoples initiative may propose only amendments to the Constitutionbut not revisions.42 The majority opinion ended with an explanation of its role:
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country.43

The Court said that no amount of signatures can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The allusions to the peoples voice or the peoples sovereign will, said the Court, could not override the specific modes of changing the Constitution as prescribed in the Constitution itself. The Court then concluded by saying:
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the peoples sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by

G.R. No. 174153, 505 S.C.R.A. 160, 229 (2006). Id. at 249. 43 Id. at 263-264.
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deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution.44

The Supreme Court managed to avoid a repeat of Javellana, and two Justices mentioned the case in their opinions. Chief Justice Panganiban, in his separate concurring opinion, again demonstrated his sense of history and his determination not to repeat the errors of his predecessors:
Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its members shall be judged by posterity. Ten years, fifty years, a hundred yearsor even a thousand yearsfrom now, what the Court did here, and how each justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the handwashing of Pontius Pilate, the abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day. Let not this case fall into the same damnation.45

Associate Justice Sandoval-Gutierrezs closing was more to the point:


Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary. . . . That was during martial law when perhaps majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing authority by the so-called peoples initiative for those who want to perpetuate themselves in power.46

She added that history will judge us on how we resolve this issueshall we allow the revision of our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful peoples initiative?47 Both Justices seem to have seen the initiative as a scheme developed by politicians to salvage the Arroyo administration. This time there were enough votes from the members of the Supreme Court to declare the drive to amend the Constitution illegal.48

Id. at 265 Id. at 289-90. 46 Id. at 414. 47 Id. at 415. 48 Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNALat 15-16.
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Discussion
Ginsburgs theory posited that framers of constitutions who are not likely to win elections after the adoption of the constitution are inclined to write judicial review into constitutions to provide a forum where they can protect their interests should future elections deny them control of the government. Ginsburgs theory can be applied to the Philippine case, with a slight twist. As pointed out earlier, the composition of the constitutional commission that drafted what is now the 1987 Constitution was not based on political affiliations. Many of those in the commission were part of the anti-Marcos movement, having taken part in protests against the Marcos regime. They were civil society actors and political allies determined to prevent a return of authoritarianism in the Philippines. They were partly responsible for sweeping Aquino into office and were clearly in power. Aquino claimed that her government was revolutionary.49 She could have carried out massive reforms in government and ruled by decree. Instead she opted to bring political stability to the country by adopting a constitution. Why did the framers take pains to strengthen the judiciarys powers in the Constitution? Why would the framers create a check on a revolutionary government that was not constrained by any rules? The composition of the Constitutional Commission dictated the interests that the constitution would protect. Having been part of the movement that ousted Marcos from office, the commissioners were not thinking along party lines. They were not thinking about the next elections or their chances of winning. Being mainly stakeholders from outside government, they had no illusions about obtaining power. They envisioned a future where their role would be largely outside official power and worked to ensure that politicians would not amend the constitution unchecked. The insurance policy was applied by the framers to protect the interests of society in general, and not their own interests. This would explain the constraints on executive power as well as the provisions reinvigorating the judiciary.

The Philippine Supreme Court sustained her position. See discussion in Gatmaytan, 15 PACIFIC RIM LAW AND POLICY JOURNAL.
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The Supreme Court in Lambino demanded strict compliance with the procedures of the Constitution on constitutional change to prevent dominant political forces from changing the Constitution according to their whims. This is precisely why the drafters of the 1987 Constitution wanted to provide the Court with more powers. The issues raised in Lambino could no longer be called political questions and the Court had no choice but to examine the attempt to amend the Constitution. Simply put, the constitutional changes worked the way they were supposed toit provided a forum for those who did not wield political power to challenge government action. The Court, now equipped with broader powers of judicial review, halted the illegal attempts at constitutional change. In short, the framers of the 1987 Constitution were concerned with protecting democratic gains and used judicial review to strengthen the judiciary to ensure horizontal accountability. We recall that Ginsburgs theory predicted that if framers of the constitution foresee themselves in power after the constitution is passed, they are likely to design institutions that will allow them to govern without encumbrance. If they foresee themselves losing power, they may entrench judicial review as a form of political insurance. These conditions did not materialize in the Philippines. The drafters were not pursuing political power and did not intend to govern after the adoption of the Constitution. Furthermore, the entire constitutional project and the inclusion of strong judicial review provisions in particular was intended to preserve the democratic ideals and prevent restoration of authoritarianism. Corazon Aquino had a simplistic platform of government when she challenged Ferdinand Marcos for the Presidency of the Philippines: dismantle the dictatorship and restore democracy. It was this idea that permeated the work of the Constitutional Commission that drafted the 1987 Constitution of the Philippines. The result was not only to create a forum were future legislation can be challenged by weaker political parties. It created a forum to challenge attempts to amend the Constitution. This forum, based on the Supreme Courts ruling in Lambino, is not presided over by a neutral arbiter, but a Court that has been conscripted into the service of protecting the constitution.

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Conclusion
Ginsburgs insurance theory finds application in the Philippines. The postMarcos government drafted a new constitution that empowered the judiciary to guard against future constitutional changes. The drafters of the Constitution were not politicians concerned with maintaining power. They were less concerned about winning future elections but more about preventing a return to authoritarian politics. When the Arroyo government attempted to change the form of government into a parliamentary system in 2006, the Supreme Court ended the campaign and emphasized its own role as the guardian of the Constitution. The drafters of the 1987 Constitution had established not only a forum to challenge constitutional change, but a Supreme Court charged with protecting the Constitution. The insurance system that came in the form of an empowered judiciary had served its purposethwarting a reprise of a strategy to retain political power by the dominant political forces.

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JOURN ABOUT THE JOURNAL


The Philippine Law and Society Review is an online, peer-reviewed journal published biannually by the U.P. College of Law, in collaboration with scholars from various units of the U.P. System. It aims to publish manuscripts that articulate the intersection between law and other disciplines, such as history, philosophy, economics, anthropology, sociology, gender studies, psychology, literature, and politics.

HOW TO HOW TO SUBMIT


Contributions and inquiries may be sent to phil.lawandsocietyreview@gmail.com. Manuscripts should be submitted in Microsoft Word or Rich Text format, typed single-space in 13-point Times New Roman font. Footnotes should conform to the Harvard Bluebook. Inquiries may also be coursed through the Institute of Government and Law Reform at Room 106, Bocobo Hall, UP Law Complex, or you may call 920-5514 local 202-203. The editorial board reserves the right to reject manuscripts or recomemend alterations. Published manuscripts are entitled to a modest honorarium.

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