philippine law and society review - october 2011

PHILIPPINE LAW SOCIETY REVIEW

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OCTOBER 2011VOLUME 1 NO. 1

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PHILIPPINE LAW AND SOCIETY REVIEW VOL. 1 NO. 1

EDITEDITEDITEDITEDITORIAL BOORIAL BOORIAL BOORIAL BOORIAL BOARDARDARDARDARD

Editor in Chief

Professor Florin T. HilbayUP 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 Women’s Studies

Dean Antonio G.M. La Viña, Ateneo School of Government

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nononononote frte frte frte frte from the editom the editom the editom the editom the editorororororLaw as a social phenomenon is a discourse of impressive structures—it breeds lifeand doctrine, meaning and language, thought and authority. It speaks with manyvoices: power, freedom, dignity, ethics, rights, justice. The noise generated by thevarious discourses of law create an intellectual landscape that can be mined for thekinds of insight that not only have the potential to enhance the jargon we havecome 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 investigationsabout the intersection between law and society. This effort is at once overdue andtimely. For both students of law and observers of society who have long spokenabout the relationship between the legal and the social but have lacked thenecessary space for the articulation of such a discourse, the PLSR is a new channelfor interdisciplinary studies. For the scholar who believes that the self-contained—andtherefore self-validating—jargon of law furnishes a very limited platform forobservation, the PLSR is a wide expanse for critical, empirical, and theoreticalexamination.

Merlin Magallona’s paper, Theses on the Impact of International Legal Relations on theConstitutional System, proceeds in two parts. Part One deals with how the Philippine constitutiongoverns the nature and function of the principles and norms of international law in thenational sphere. It illustrates the resulting changes in the treatment of theseprinciples of international law once they are incorporated or transformed throughmechanisms allowed by the Constitution. It also highlights the different charactersthe same principles assume in the national and international arena and exposes thedifficulties 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 legalregulation over matters of national jurisdiction. Global integration has given birth to asupranational order. This paper explores the impact of such a phenomenon on ourconstitutional system and reexamines the role and impact of the Treaty Clause inlegitimizing the supranational direction of our nation’s policies and ultimately, thederogation of our right to self-determination and independence in international law.

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Owen Lynch’s Mandating Recognition establishes that the trend in international law istowards mandating the legal recognition of native/aboriginal title. There is growingevidence to that effect, as shown by international conventions and declarations,decisions of international tribunals, and emerging international standards. Thispaper presents and analyzes each of these decisions and standards. It asserts thatgiven 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 thejudicial review powers of the Philippine Supreme Court under the 1987 Constitution.He posits that Ginsburg’s “insurance theory” on constitutional design operated withinthe Philippine experience, albeit with a twist: The powers of the Supreme Court, shapedby non-political actors with little or no vested interests in securing future politicalpower, 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 andmeaningful conversation about law and society in the Philippines.

Welcome!

Florin T. Hilbay

nononononote frte frte frte frte from the editom the editom the editom the editom the editororororor

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CCCCCONTENTSONTENTSONTENTSONTENTSONTENTS

Theses on the Impact of International Legal Relationson the Constitutional System...................................................6

Mandating Legal Recognition: International Lawand Native/Aboriginal Title...................................................31

The Judicial Review of Constitutional Amendments:The Insurance Theory in Post-Marcos Philippines..........74

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IMPACT OF INTERNATIONAL LEGAL RELATIONS

ABSTRACT

Part One of this essay intends to show how the Philippine Constitution governs the natureand function of the principles and norms of public international law in the national sphere. It outlinesa framework by which it deals with problems pertaining to the relation of international law andnational law, from the standpoint of constitutional law. It aims to assist in resolving issues arisingfrom the confusion in the application of principles of international law: whether in the internationalsphere or in the national plane. It illustrates this confusion in what appears to be an unexamined, oreven mindless, situations detected in Supreme Court decisions.

In Part Two, the paper surveys how global integration, reflected in the developments ofinternational law, impacts on the constitutional system. The survey takes international law asdecision-making processes governing the relation of international organizations and their memberStates. It examines the legal relations of the Philippines with the International Monetary Fund(IMF), the International Bank for Reconstruction and Development (World Bank) and theWorld Trade Organization (WTO) in the setting of globalization. The resulting crisis of thePhilippine Nation-State is explored.

TTTTTHESES ON THE IMPHESES ON THE IMPHESES ON THE IMPHESES ON THE IMPHESES ON THE IMPAAAAACT OFCT OFCT OFCT OFCT OF INTER INTER INTER INTER INTERNNNNNAAAAATIONTIONTIONTIONTIONAL LEGAL LEGAL LEGAL LEGAL LEGAL RELAAL RELAAL RELAAL RELAAL RELATIONSTIONSTIONSTIONSTIONSON THE CON THE CON THE CON THE CON THE CONSTITUTIONONSTITUTIONONSTITUTIONONSTITUTIONONSTITUTIONAL SYSTEMAL SYSTEMAL SYSTEMAL SYSTEMAL SYSTEM

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

MERLIN M. MAGALLONA*

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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 oftheir application in Philippine jurisdiction that principles and norms of internationallaw must first be incorporated or transformed into national law. The Constitution hasdesigned two mechanisms by which this is to be fulfilled, namely: the IncorporationClause and the Treaty Clause. As explained below, incorporation or transformation isa peremptory mandate of the national legal system.

The mechanism in the Incorporation Clause is described in Section 2, ArticleII 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 theprevailing mythology as conceptualized in USA vs. Guinto1 as follows:

Sovereign immunity is one of the generally accepted principles of internationallaw 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 generallyacceptedprinciples under the doctrine of incorporation. Under thisdoctrine of incorporation, as accepted by the majority of States, suchprinciples are deemed incorporated in the law of every civilized state as acondition and consequence of its membership in the society of nations.Upon its admission to such society, the state is automatically obligated tocomply with these principles in relation with other states.

This interpretation necessarily implies that the Incorporation Clause has novital purpose in the Constitution; it becomes a surplusage. It has the effect of eliminatingits 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 generallyaccepted principle of international law are binding upon States as subjects of law. Theyare binding on the Philippines not by reason of the Incorporation Clause, but on accountof the Constitution. By the nature of these principles as general international law, theirbinding 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 assumesits real function. Here, the Incorporation Clause becomes an indispensable mechanismby which the Constitution changes the status of the “generally accepted principles ofinternational law” from the international plane to the national sphere and therebybecome part of Philippine law.

This indispensability is rooted in State sovereignty — a norm acquires thejuridical status of national law only when it is so promulgated pursuant to processes ofits constitutional system. There are no norms higher than constitutional norms, inparticular with respect to principles derived from the international plane.

In the national plane, the principles of general international law form part ofnational law not by mythical automatic incorporation but by reason of express directiveof 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 thefollowing results:

a. It is in the nature of these principles as part of general international lawoperating in the international sphere that they hold supremacy over the Constitutionand national statutory law. But by means of incorporation as a constitutional act, theybecome subordinated to the Constitution, their application in the national sphere beingsubject to constitutional and legal standards.

b. The application of these principles as national law pertains to subjects orpersons of Philippine law comprising primarily of individual natural persons and juridicalentities. This strikes a difference from their status in the international legal order inwhich they govern the legal relations of States, international organizations and othersubjects of international law.


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c. In national jurisdiction, the principles of general international law becomederivative of rights and obligations created by Philippine law, primarily by the Constitution.

d. The same principles derive their validity from the Constitution under theIncorporation Clause, even as their substantive content is determined by internationallaw. This is a marked departure from their status in the international plane, in whichthey 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 Section21, 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 beinterpreted 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 unlessin 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. BlayblockTransportation Services Employees Association-Kilusan,2 becomes pertinent:

A treaty has two aspects — as an international agreement between States, and asmunicipal 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 71 SCRA 621, 629 (1976). Emphasis added.3 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 onthe Law of Treaties of which the Philippines is a party. Paragraph 1(a) of this Articleadopts the usage of the term “treaty” in the international plane, as follows:

. . . “treaty” means an international agreement concluded between States inwritten form and governed by international law, whether embodied in a singleinstrument or in two or more related instruments and whatever itsparticular designation.3

This usage in the international plane is to be read in close correlation with paragraph2 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 presentConvention are without prejudice to the use of those terms or to the meanings whichmay 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 treatygoverning treaties — respects the duality of legal regimes. The application of the conceptof treaty in a misplaced context may lead to absurd results. For example, “treaty” asagreement in the international plane is used in the national jurisdiction in a case involvingits constitutionality; as a treaty in the international plane, it holds supremacy over theConstitution and yet the domestic court at bar is in the exercise of its constitutionalpower to declare that it is in violation of the Constitution.5 Or, where the domesticcourt 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 inderogation 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 “generallyaccepted principles of international law” and of binding conventional rules into

IMPACT OF INTERNATIONAL LEGAL RELA-

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

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Philippine law are integrally connected to the two principal sources of internationallaw recognized by the international community as reflected in Article 38(1) of theStatute of the International Court of Justice (ICJ). In continuity with the juridicalstatus of these sources in the international plane, the principles subsumed under theIncorporation Clause are reasonably interpreted as pertaining to general internationallaw or international custom which is characterized as binding on all States; whereas thebinding force of conventional rules under the Treaty Clause is limited to the Statesthat are parties to the relevant treaties or conventions.

The dividing line between these sources of law is drawn by the scope of theirbinding character as thus indicated. The constitutional design adopts this categorizationand thus maintains the juridical distinction between norms of customary or generalinternational law under the Incorporation Clause, on one hand; and conventional ortreaty law under the Treaty Clause, on the other. Disregard of this categorization mayhave been committed by the domestic court in its pronouncement that the entiremultilateral 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 one’s country asprovided in the international human rights covenant, of which the Philippines is alreadya party, becomes part of national law by reason of the Incorporation Clause.8

As against the supremacy of the treaty over the Constitution in theinternational plane, the Constitution embodies the principle that in the nationalsphere there are no norms higher than constitutional norms, in particular in regardto conventional international norms. Representing the core provision in the dualcharacter 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 thelaw 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 See Agustin vs. Edu, 88 SCRA 195 (1979).8 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 isextended to statutory enactments over treaties:

“[O]ur Constitution authorizes the nullification of a treaty not only when itconflicts with the fundamental law, but also when it runs counter to an act ofCongress.11

The supremacy of an act of Congress over a treaty in Gonzales is founded onthe separation of powers doctrine and derives its constitutional force from legislativepower: an executive agreement diametrically opposed to an explicit prohibition incongressional enactments cannot stand and must fall under the review power of theSupreme Court. It is the business of Congress to enact laws; not of the Executive,whose burden is to execute them. In one respect, the Court’s formula loses strength;curiously, while Gonzales involves what it considers as “executive agreement,” theconstitutional text that it applies defining its review power deals with “treaty”. Thefacticity of the case principally determined by “executive agreement” sustains thereasoning of separation of powers, but it does not hold much cogency in regard to theapplication of the juridical review power premised on “treaty” on account of theparticipation of the Senate in the ratification process of treaties.

On two fundamental points, Abbas vs. Commission on Elections12 departs fromGonzales. Abbas affirms:

Assuming for the sake of argument that the Tripoli Agreement is a bindingtreaty 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 theCongress 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 asubsequent law.13


9 Emphasis added.10 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 andinstalls the theory that the treaty is in parity with the statute. Secondly, in case ofirreconcilable incompatibility between them, Abbas resolves this problem by the later-in-time principle or lex posterior derogate priori, in place of the Gonzales thesis of theAct of Congress nullifying the treaty. While Abbas limits itself to the amendatory orrepealing effect, Gonzales goes on to the extreme of nullification; the practical effectmay hold little difference in both cases from the viewpoint of the international planein regard to the possible result in terms of state responsibility: a sharper confrontationbetween the national legal system and the law in the international plane.

Having its own standards of legality (or illegality), international law operatingin the international plane defines for itself what constitutes an “internationally wrongfulact” on the part of States, independent of national law.14 Such a wrongful act comesinto being when an action or omission “constitutes a breach of an internationalobligation of the State,” assuming that it is attributable to the State.15

The wrongfulness of an act is determined by international law and suchdetermination is “not affected by the characterization of the same act as lawful by internallaw.”16 In conformity with the Constitution, the Supreme Court may strike down a treaty asunconstitutional, reducing it to nullity as national law, with the consequence that no Stateorgan or official would ever take action in compliance with the obligation of the Philippinesunder that treaty, leading the other States Parties to consider the Philippines as havingcommitted an internationally wrongful act. Being an organ of the State, the Court’s conductmay be attributable to the Philippines as its own act under international law.


14 This concept of state responsibility is derived from the Draft Articles on Responsibility of Statesfor Internationally Wrongful Acts, prepared by the International Law Commission which it adoptedat its 53rd session in 2001 and submitted to the U.N. General Assembly. Text of the Draft Articles ispublished 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 ofinternational obligation of the State, on account of such internationally wrongfulact.17 The formula in Ichong vs. Hernandez that the “treaty is always subject toqualification or amendment by law”18 is good for the consumption of the national-lawregimes, but the rights and obligations of the States Parties to the treaty remainunaffected. Along the same principle, to be strictly confined to national law is theapplication of lex posterior derogat priori in Secretary of Justice vs. Lantion19 to the effectthat “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 followinganomaly. In a constitutionality suit against the Visiting Forces Agreement (VFA)concluded between the Philippines and the United States, the Supreme Court’s powerto declare a treaty or international agreement unconstitutional is invoked.20

Apparently disjointed out of this context is the Court’s affirmation that:

As a member of the family of nations, the Philippines agrees to be boundby generally accepted rules for the conduct of its international relation. While theinternational obligation devolves upon the State and not upon any particularbranch, institution, or individual member of its government, the Philippinesis nonetheless responsible for violations committed by any branch orsubdivision of its government or any official thereof. As an integral partof the community of nations, we are responsible to assure that ourgovernment, Constitution and laws will carry out our international obligations.Hence, we cannot readily plead theConstitution as a convenient excusefor non-compliance with our obligations, duties and responsibilities underinternational law.21


17 See ILC Draft Articles 1, 2 and 4.18 101 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 remindedthat it is not sitting as an international tribunal which subordinates the Constitution totreaty obligations and, in doing so, does violence to the nature of the case at bar which isinstituted for the purpose of determining whether the treaty in question—the VFA —contravenes the Constitution. Bayan, reversing the situation, now appears to turn the tableand raise the issue instead as to whether the Constitution should be interpreted inconformity with the obligations under the VFA. It lends itself to the misconception thatin 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 concurrenceof the Senate alone that appears to make the treaty “valid and effective” as domestic lawand as international agreement, in the context of the national sphere. With respect tomultilateral conventions in particular, the law in the international plane is in complementaritywith the law in the national sphere. Independent of national law, a multilateral conventionbecomes 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 alreadyentered into force by its own provision, then it becomes valid and effective asnational law because at that moment and for that reason it has already assumedthe character of international law. If the convention has not yet entered intoforce by that time, the effect of Senate concurrence is merged into the number ofratifications required under the entry-into-force provision of the convention, thuscontributing a step towards its entry into force and towards its transformationinto national law. In brief, an international convention may be internalized asnational 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 undergonetransformation such that its relations to the national-law system generates pressuresfor fundamental adjustments in the national constitutional order. An estimate of thistransformation may be illustrated by a reference to the well-known presumptionformulated 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 orconventional rules of international law. Owing to the increasing integration of humanaffairs and institutions into a global community, the corresponding progress of internationallaw spells the tremendous expansion of international legal regulation over matters ofdomestic 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 isthe independence of States that cannot be presumed. They carry the burden to showthat their acts in question are yet retained within their domestic jurisdiction.

The trends of globalization seek their own way of internalization into thelegal order. In the national sphere, their pervasive influence can irresistibly seducejuristic thinking in their sway. Increasingly, legislative acts assume the nature ofimplementation process for treaty obligations. Inevitably, it is the development oflaw in the international plane which would open the way to the consolidation of social,economic and political conditions for further changes along globalism.

23 33 ILM 1125 (1994).24 John H. Jackson, Reflections on International Economic Law, 17 U. Pa. J. Int’l 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, andInternational 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 AgreementEstablishing the World Trade Organization (WTO),23 a product of global tradenegotiations described as “a watershed shift and the most profound change in internationaleconomic relations, institutions, and structures since the origin of the Bretton WoodsSystem at the end of the World War II.”24 Since that time, the reconstruction, developmentand stability of the world economy have been largely sustained by the operations oftwo international organizations, namely, the International Monetary Fund (IMF) and theInternational Bank of Reconstruction and Development or the World Bank.

The World Trade Organization, the International Monetary Fund and the WorldBank have interconnected functions. Under its Articles of Agreement,25 the IMF has alegal basis to establish close cooperation with the World Bank, which has been systematizedin practice.26 On its part, the World Bank has interpreted its Articles of Agreement27 asauthority to make and guarantee loans not only for specific projects but for programsof reconstruction of the monetary system, which relates its operations to the IMF’sfield of responsibility. Article III (5) of the WTO Agreement is explicit on the necessityfor achieving what it calls “greater coherence in global economic policy-making,” andfor this purpose it provides that the WTO “shall cooperate. . . . with the InternationalMonetary 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 theWTO on the terms of cooperation with the view to “further integrate developingcountries into the global economy.”28 Each organization holds tremendous influencein controlling the decisive course of individual national economies. Certainly, thedriving force of their well-coordinated operations will accelerate the globalization trendstowards the totalizing integration of the developing countries.


28 NEWS ASIA, 11 December 1996, at 1.29 See Christoph Schreuer, The Significance of International Organizations in Current International Law, 38Law 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 ofinternational-law rules, namely, the principles, standards and norms that are embodiedin (a) the Articles of Agreement of the International Monetary Fund; (b) the Articlesof 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 inArticle 38(1) of the Statute of the International Court of Justice, consisting ofinternational conventions, international customs and general principles of law. Inthis setting, international law is viewed as ready-made rules designed to be applied inresolving disputes.29 The dynamics of the International legal order lies as much in thepolicy-changing mechanisms, re-structuring of power and processes of making decisions.International law in the operations of the globalization triad, described above, is not somuch “a system of neutral rules as “a system of decision-making directed towards theattainment of certain declared values.”30 The forms and methods are derived from traditionalinternational 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 globalizedeconomy 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 principalorgans of the IMF, the World Bank and the WTO, for compliance by members of thistriad. The supranational legal system has the following constituent elements:

a. An international agreement concluded by States establishing an internationalorganization imbued with a personality separate from, and independent of, the


30 See ROSALYN HIGGINS, PROBLEMS AND PROCESS. INTERNATIONAL LAW AND HOW WE USE IT 1-16 (1994);Policy Considerations and The International Judicial Process, 17 Int’l 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 organizationare 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 therelation between the organization and its members.

d. The principal organs have the legal competence to enter into agreementswith the members to be governed by international law; hence, their decision-making capacity includes the authority to create rules and procedures bindingon the States composing the organization.

e. The decisions of the principal organs operate as international law binding on themembers.31

Quite apart from the obligations embodied in their constituent instrumentsor charters of the IMF, the World Bank and the WTO, their principal organs have thecompetence to create binding commitments on the part of the members by imposingconditionalities in loan and guarantee agreement as well as in entitlement to financialfacilities from the organizations.

On the supranational level, the decisions of the Board of Governors or theExecutive Directors of the IMF or of the World Bank, or the decision-making organsof the WTO, hold supremacy over national laws and policies. For example, ArticleXIV (4) of the WTO Agreement provides: “Each member shall ensure the conformityof its laws, regulations and administrative procedures with its obligations as providedin the Annexed Agreements.” This serves as an integral part of the WTO dispute settlementprocedure that if the laws and regulations of a member are determined to be in contravention


32 Understanding on Rules and Procedures Governing the Settlement of Disputes, MarrakeshAgreement Establishing the World Trade Organization, Annex 2, THE LEGAL TEXTS: THERESULTS 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 lawsor policies within the required period to avoid “sanctions” in the form of suspension orremoval of concessions or retaliation by the complainant member.32 Compliance withsuch decisions is subject to surveillance to ensure implementation or enforcement.33

This mechanism of dispute settlement is applicable to conflicts involving laws andpolicies of a member vis-à-vis its obligations under the vast field of WTO regulatorycoverage which include trade in goods, trade in services, trade-related intellectualproperty 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 membersare not allowed to take unilateral action in redress of a breach of WTO commitmentor impairment of benefits under the WTO Agreement.34 Article 23 of the DSU requiresthem to resort to the prescribed procedure of resolving disputes, including determinationof retaliation. The devolution of power to the WTO is complete, supreme and exclusive.

In international monetary matters, the IMF’s prerogative in controlling theeffectiveness of enforcement is not limited to passive prohibition; it involves specificaffirmative approval by the Board of Directors or the Executive Directors with respectto relevant national decisions and policies. The IMF jurisdiction is so comprehensiveand commanding that the legal obligations they embody under Article IV of the IMFArticles of Agreement allow the IMF to intervene in every aspect of the nationalmonetary policy-making. Under Section 1 of this Article, the Philippines has theobligation to (a) direct its economic and financial policies towards the objective offostering orderly economic growth with reasonable price stability; (b) promote stabilityby fostering economic and financial conditions and monetary system that does nottend to produce erratic disruptions; (c) avoid manipulating exchange rates or theinternational monetary system in order to prevent effective balance of paymentsadjustment or to gain an unfair competitive advantage over other members; and (d)follow exchange policies compatible with the foregoing obligations. This statementof obligations, limited as it is, cannot be contained within the country’s monetary systemalone. It affects the entire national economy, and thus the IMF’s hegemonic control entailsintervention into the whole field of decision-making in the entire national economy.

Section 3(a), Article IV of the IMF’s 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 ratespolicies,” and the Philippines has the corresponding duty to provide the IMF with“the information necessary for such surveillance,” which implies operationalknowledge 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 bythe Philippines that the supranational authorities assume commanding control overthe strategic directions and structuring of the national economy. Together with theAsian 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 vitalneed all the more makes decisive the role of the World Bank in shaping the country’seconomic as well as political and social life. The right to self-determination — the nodalelement of a State’s independence under international law — is derogated by the conceptof development made by the decision-making processes of the supranational authorities.

In the context of these processes, the real object and purpose of the financialfacilities derived from these sources is to effect policy and institutional changes required bythe supranational authorities. President Julius Nyerere of Tanzania may have disclosed notonly a political but a moral predicament as well in the relations of developing countries withthe supranational authorities when he said: “The IMF has an ideology of political and socialdevelopment which it is trying to impose on poor countries irrespective of their own clearlystated policies . . . And when we reject IMF conditions we have the threatening whisper: ‘Withoutaccepting 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 authoritiesmay have produced more dramatic and far-reaching transformations than thosebrought about by the independent initiative of the Congress or the Executive


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

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Department. If at all, changes of equal significance may have been accomplishedby the legislative and executive branches of the government, but they may havecome into being on account of the fact that the policy prescriptions of thesupranationals were carried out as part of the government program.

It is in this peculiar context of economic and political transformation in the nationalcommunity that some controversies of significance have reached the Supreme Court.Notably, these are Tañada vs. Angara36 as regards the ratification of the WTO Agreement;Manila Prince Hotel Corporation vs. Government Service Insurance System37 with respect to thegovernment privatization policy; and Tatad vs. Secretary38 on the oil deregulation law.

These controversies mark the impact of authoritarianism of the supranationalorganizations and shed light on the consequences of their policy demands. In onerespect, they show us the understanding as to how the Court’s decision1 in Tatad vs.Secretary deals with a major policy prescription of the supranationals, resulting in thedisruption of the long-standing practice of exploiting the country’s need for funds asa means of extracting policy and institutional changes by these external forces.

The IMF and the World Bank had long pursued the demand on the governmentto free the oil industry from pricing restriction by government regulation and to removethe subsidy from the Oil Stabilization Fund. The desired policy on their part was toallow the market to determine the price of oil products, which meant that the oiltransnational corporations themselves would be the ones to set the price for theirproducts. The IMF team which reviewed the economic performance of the Aquinoadministration underscored this demand.39 To the IMF, deregulation of the oil industrybecame a criterion for the country’s economic recovery.40 The World Bank commissioneda study on the deregulation of the oil industry for approval by the Cabinet.41


39 IMF Wants Gov’t to Free Oil Prices Immediately, PDI, June 28, 1990, at 17.40 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.

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Enacted into law as an administration measure, the IMF-sponsoredderegulation measure for the oil industry became Republic Act No. 8181, “An ActDeregulating the Downstream Oil Industry and for Other Purposes.”

The impending rise of oil prices resulting from the new statutory freedom ofthe oil market led to a broad public protest against the Oil Deregulation Law. Whenthe Supreme Court struck down the law as unconstitutional in its entirety in Tatad vs.Secretary, it derailed—for some time at least—a major policy prescription of the IMF;the independence of the Court proved to be a saving grace vis-à-vis the habitualsubservience to the supranational authorities.

However, later, the IMF came back and demanded a new oil deregulation lawas 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 fromthe IMF’s hold pending the enactment of a new deregulation law.43 When Congress passedthe revised deregulation law in Republic Act No. 8479, the executive department expresseddissatisfaction because the new law failed to comply with the IMF’s Extended FundFacility in which the Philippines committed itself to the deregulation of the oilindustry.44 In the end, President Fidel V. Ramos placed the authority of his office behindthe prospects for a solution more satisfactory to the IMF, declaring: “All parties areworking 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 enactmentof the Comprehensive Tax Reform Law in Republic Act No. 8424 was conditionalityof the IMF attached to the Extended Fund Facility, one of the structural reformsrequired by the IMF.46 In a landmark restructuring of the country’s monetary andfinancial institutions, Congress enacted Republic Act No. 7653 establishing the Bangko


44 New Oil Bill May Not Meet Conditions for IMF Exit, MLA BULL, January 25, 1998, at B-1.45 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 ExitPoses 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 Gov’t Bared, MLA BULL, July 27, 1992, at B-1.

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Sentral ng Pilipinas, in place of the Central Bank Act. This initiative proceeded fromthe World Bank, with the support of the IMF, as a conditionality attached to FinancialSectoral Adjustment Loan intended to ensure the “independence” of the monetaryagency through the representation of five members from the private sector in theMonetary Board, as against two from the government sector.47

Thus, from a survey of the impact of the supranational operations on ourlegal and constitutional system, we derive the following synthesis:

a. As shown above, policy prescription and demand for structural changesfrom these authorities are channeled through legal and constitutional processes and thusthey assume legitimacy in the constitutional framework as acts of government agencies.

b. The pervasive policy intervention of the supranationals destroys theconstitutional balance of power between the Executive and the Legislative Departments.It may be shown that the link between the IMF-prescribed program of government andthe constitutional organs of broad republican representation is very tenuous indeed.Owing to the comprehensive nature of policy prescriptions and structural reforms coveredby its relations with the supranational authorities, the Executive Department virtuallybecomes their implementing extension. Equipped with the financial resources fromthese authorities, the Executive effectuate policies as thus prescribed without seeingthe need to involve legislative participation, except in extraordinary situations.

The policy intrusions by the supranational authorities is not limited to specificprojects. They prescribed an entire program of government; for more than fourdecades, the government’s program had been contained in the Memorandum ofEconomic and Financial Program (MEFP), a formal statement of policies to be carriedout by the Executive Department, as approved by the IMF in collaboration with theWorld Bank. The implementation of the conditionalities in MEFP is supervised bythe IMF, which conducts a periodic review of government performance.48 On the partof the World Bank, the program of policies to be carried out by the ExecutiveDepartment as conditionalites in the Economic Integration Loan (EIL) is contained


48 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.

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in the “EIL Policy Matrix.” The Economic Agenda of the Ramos Administrationhad been described as based on the EIL Policy Matrix of the World Bank. Itappears that the entire program of the government became a conditionality forloans and credits from the supranational authorities.

c. The comprehensive field of policies which engages the controlling influenceof the supranational authorities proves to be more significant than the scope ofcongressional power. In fact, as already illustrated, their policy initiatives are funneledinto the legislative mill. There are, however, policy conditionalities of strategicand far-reaching consequences that did not enter the congressional agenda; a notableexample is the policy of privatization and deregulation which, as a conditionalitystipulated in MEFP, has gone a long way in implementation by the ExecutiveDepartment. Strategic industries vital to national security have been privatized, suchas National Steel, Philippine National Bank, Petron and Philippine Air Lines.

d. The relation between the Philippines and the supranational authorities is basedon the Philippines being a party to the constituent instruments or charters of thesupranational authorities. Based on these instruments are a network of agreements. Thelegal relations between the Philippines and the supranational authorities are maintained ontwo levels, namely: (i) the charter of the organizations; and (ii) agreements pursuant to thepurpose and object of the charters, which the organizations conclude with theirmembers. On both levels, the rules of international law governing internationalagreements become the source of obligations on the part of the Philippines; they aretransformed into Philippine law by virtue of the Treaty Clause of the Constitution.

Loan and guarantee agreements with the World Bank and its subsidiaries presenta special problem. Since these agreements create legal relations in that they define rightsand duties under international law, are they not subject to Senate concurrence? The problemis complicated by the fact that set apart from the Treaty Clause in Section 21, Article VII ofthe 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

49 See Hugo J. Hahn, International Law and Guarantee Agreements, 41 State and Law 29 (1990).50 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.


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Monetary Board.” Insofar as the World Bank may be a party with the Philippines tosuch agreements, note that it has been its established practice that the loan and guaranteeagreements it concludes are agreements governed by international law.49

Aron Broches, former General Counsel of the World Bank, had articulatedthe view that:

In analyzing the legal nature of the [World] Bank’s loan and guarantee agreementswith its members, I shall be concerned primarily to consider by what rules of lawthese agreements are governed. My conclusion will be that they are internationalagreements 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 LoanAgreement … shall be valid and enforceable with their terms notwithstandingthe 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 agreementsbut subject them in all respects to international law. I submit that anyagreement between subjects of international law which by express termsexcludes the application of municipal law is governed by international law.I further submit that it is only in an agreement between subjects ofinternational law that the application of municipal law can be whollyexcluded.52

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

52 Broches, op. cit., supra 49, at 345.53 Id. at 353.


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It is the practice of the World Bank, as decided by its Executive Directorsthat these agreements are registered with the UN Secretariat by authority of Article102 of the UN Charter, taking into account the mandate of this provision that “Noparty 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 UnitedNations.” Broches observes: “...that registration, or filing and recording...of the Bank’sloan and guarantee agreements with its members may be regarded as confirmatory oftheir character as international agreements;”53 and thus governed by international law.

From these considerations, it is reasonable to infer that the loan and guaranteeagreements under Section 20, Article VII of the Constitution are subject to Senateconcurrence as required by the Treaty Clause, insofar as they are contracted by thePhilippines with subjects of international law, i.e., with States or internationalorganizations. Under the Constitution, it is only by Senate concurrence that a “treatyor international agreement shall be valid and effective” as Philippine law and as asource of international obligations.

The present practice does not respect the necessity of Senate concurrence.While this practice enjoys legislative authorization of omnibus character, all thatCongress requires of the President is “to contract such loans, credits and indebtednessas 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 fullestdiscretion in determining—or receiving—the terms and conditions of the loan or guaranteeagreement under the coercive pressure of the World Bank, which are not known to Congressat the time its omnibus authorization was enacted. Whereas, Senate concurrence becomesat the same time a form of legislative scrutiny of the specific provisions, rights andobligations of each agreement in the context of the immediate circumstances justifyingthem. Through the Senate, legislative power provides a check to the excesses of Executiveauthority in accepting onerous conditionalities embodied in the agreement. The presentsituation allows considerable freedom on the part of the President to internalize intothe constitutional system the authoritarianism of the supranational authorities.

e. The overwhelming financial resources of the IMF and the World Bank mayhave provided the policy turning points in the restructuring and development of thePhilippine 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 country’s


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international economic relations under the WTO Agreement will increasingly exert theconstraints on the main policy–making processes under the Constitution. The triad of theIMF, the World Bank and the WTO, through the constituent instruments ratified by thePhilippines as international law, becomes the tail wagging the entire national economy.

This should dramatize the thesis that the Treaty Clause of the Constitution isin crisis. It has become a mechanism for transforming rules of international law to beapplied as national law. In truth, transformation does not merely achieve theinternalization of treaty norms as ready-made rules for the settlement of disputes.Over and above that function, it has given constitutional legitimacy to the operationsof the supranational authorities which, on a continuing basis, promulgate rules anddecisions impacting on the strategic directions of the Philippine Nation-State and, inthe 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 ingoods and trade in services, the scope of the WTO regulatory regime includes: (i)banking industry; (ii) financial and security services; (iii) insurance and reinsuranceindustry; (iv) transport industry; (v) intellectual property; (vi) investment measuresrelated 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 impliesthat there may be a small area of domestic jurisdiction left for Congress to legislate on, ifconflict is to be avoided with treaty-based laws. Moreover, in domestic jurisdiction, Congressmay by law modify, amend or limit treaty rules when applied as national law and domesticcourts may strike down a treaty or its provision as invalid or unconstitutional. But in theinternational plane, neither a legislative act nor a judicial decision may adversely affectthe treaty rights and obligations among States parties; of supremacy is the applicationof the fundamental principle in international law that “A party [to a treaty] may not invoke

54 Vienna Convention on the Law of Treaties Art. 27, opened for signature May 23, 1969, 1155 U.N.T.S. 331.55 See CONST. art. VI, §28(2).56 For example, it is provided that “The legislation of each Member shall provide in regard to a determinationof customs value for the right of appeal without penalty, by the importer or among other person liable for thepayment of duty.”


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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 Departmentassumed tremendous powers in its implementation. These powers may have beenoverextended by treaty provisions beyond the constitutional boundaries, as setout, for example, in the tariff clause of the fundamental law. The result was thatthe tariff rules under the GATT 1994 forming part of the WTO Agreement havethe 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 ofthe WTO Agreement implementing Article VII of GATT 1994 which regulate thevery exercise of congressional powers under the Constitution.56

Revamping the Philippine Nation-State

The conditionalities and prescriptions described above may be summed up asthe transformative directions of the Philippine Nation-State, as follows:

1. Liberalization of trade, which has the effect of eliminating the politicalboundary in the production of goods as well as in the flow of capital, services andlabor. In a globalized setting, the country’s political boundary becomes an obstacle to theinternationalization of the production processes, for example, through global subcontracting.

2. Privatization of public industrial and financial assets and institution, intendedto eliminate public authority from the market, paving the way for unrestrained dominanceof private capital in regulating itself. In the democratic context, privatization means thedisplacement of the people’s will expressed through public authority by the “forces ofthe 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 ofthe State in the management of the national economy and thus enhances the powerof private capital in the operation of the economy; in other words, the curtailment ofeconomic sovereignty vis-à-vis foreign investments. The principle of profitmaximization replaces social security and public accountability.


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4. These policy components are combined into a strategy to remold thePhilippine statehood, resulting in the dismantling of structures and institutions builton the foundation of democratic will and economic nationalism.

In its study entitled Emerging Asia: Changes and Challenges, the Asian DevelopmentBank (ADB) sees the need for Asian governments to redefine “the boundaries of theirresponsibilities.” The essential message of the study is that “Asian government shallbecome less concerned with appropriating and directly allocating resources.” It spells outthe downsizing of the State in its economic and social role, i.e., the displacement ofthe welfare state by private capital, otherwise known as the “forces of the market.”

Significant is the subject-matter of the World Bank’s 1997 Development Report,“The State in a Changing World.” It calls for a re-thinking of the role of the State andrecommends a strategy along privatization and deregulation.

This outlook is alien to the State conceptualized in the Constitution. It is awelfare state that is the bearer of economic and social policies, beginning withnationalism as a fundamental creed. The Constitution defines the State as theembodiment of the collective will of the national community proclaiming that“All lands of the public domain, waters, minerals, coal, petroleum, and othermineral oils, all forces of potential energy, fisheries, flora and fauna, and othernatural resources are owned by the State,” to be disposed of primarily for the benefitof the Filipino citizens on the principle of intergenerational equity. It is afundamental law of economic sovereignty that resides in the Filipino people on thepremises 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 conventionas its likely forum will become an ideological battleground as to the concept of the PhilippineNation-State that will prevail, a confrontation that involves a new level of relation betweenthe national law of sovereignty and the international law of globalization.


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MANDATING LEGAL RECOGNITION

ABSTRACT**

This paper identifies, summarizes and analyzes leading international and nationallaws and judicial cases recognizing or otherwise supportive of native/aboriginal title. Native/aboriginal titles are community-based property rights typically held by indigenous peoples andsome other original, long-term-occupant local communities. The paper evinces widespread andgrowing evidence that international law is moving towards (and arguably already is) mandatinglegal recognition of native/aboriginal title to indigenous territories and ancestral domains. Itreferences 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 toconstitute 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 indiffering ways, to recognize indigenous peoples’ and others’ native/aboriginal titles. Since 1968eleven African nations have recognized customary rights as including property rights in theirconstitutions and/or land laws. Major international law conventions, declarations and otherinstruments that are supportive of native/aboriginal title are also identified. Finally, the papersummarizes 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 ascustomary international law, as evinced in the domestic law of a growing number of nation-states — is towards mandating the legal recognition of native/aboriginal title.

MANDMANDMANDMANDMANDAAAAATING RECTING RECTING RECTING RECTING RECOGNITION:OGNITION:OGNITION:OGNITION:OGNITION: InterInterInterInterInternnnnnaaaaationtiontiontiontionalalalalal

LaLaLaLaLaw and Nw and Nw and Nw and Nw and Naaaaative/ABORIGINtive/ABORIGINtive/ABORIGINtive/ABORIGINtive/ABORIGINAL TITLEAL TITLEAL TITLEAL TITLEAL TITLE

OWEN J. LYNCH*

* FELLOW, RIGHTS AND RESOURCES INITIATIVE; VISITING PROFESSOR, COLLEGE OF LAW, UNIVERSITY OF

THE PHILIPPINES; US FULBRIGHT SCHOLAR.** This paper was enhanced by—and the author is deeply grateful for—the extensive comments pro-vided by five anonymous reviewers, as well as Roshan Jose, Kristen Hite, Andy White and JeffreyHatcher. For various reasons not all of their many useful suggestions could be accommodated, buteach was considered and much appreciated.

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Human Rights and Environmental Justice in International Law1

Over the past 60 plus years there has been growing attention paid toindigenous peoples and other local communities still living in areas originally inhabitedby their forebears. This interest is prompted by various concerns, including humanrights, economic development, and environmental protection and conservation.Meanwhile, there has been an observable increase in environmental and othertypes of conflicts throughout the world, many of which are violent and profoundlydestructive 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 ruralareas 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 ownershipof carbon in trees, including trees planted and protected in long inhabited areas.


1 In this paper “law” is understood to be a process of decision making by those who are politicallyrelevant, i.e., a process of authoritative decision-making. See W.M. REISMAN, et. al., INTERNATIONALLAW IN CONTEMPORARY PERSPECTIVE (2d ed. 2004). W.M. REISMAN & A.M. SCHREIBER,JURISPRUDENCE: UNDERSTANDING AND SHAPING LAW (1987). E.A. Hoebel asserted in THELAW OF PRIMITIVE MAN that laws and legal systems have four basic elements: 1) norms; 2) regularity ofenforcement/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 socialostracism, however, have emerged as important modes for effectively promoting international lawenforcement. N.B. The author has paraphrased some of Hoebel’s language. Use of the word “primitive”is inappropriate and arrogant in the context of 2010. Over a half-century ago Hoebel was using languagethat other social scientists of the time were also using widely. It merits note that Hoebel’s writings reflectedfascination and admiration for non-dominant indigenous peoples and cultures.

Conventional international lawyers would no doubt argue in favor of a more structured andhierarchical 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 Justicedecisions, and arguably covenants, providing standards that are legally binding (despite often beingunenforced and sometimes unenforceable). This paper, by contrast emphasizes emerging global trendsand commitments by nation-states to new and progressive international law norms supportive of humanrights and environmental justice, especially legal recognition of native/aboriginal title. It relies on emergingunderstandings of international law that are more inclusive and encompassing. These approaches areincreasingly 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 tothreatening global trends concerning human demography, consumption, pollution,violence, inequity, failed states and more. These trends increase and exacerbatealready unprecedented demands on the regenerative capacities of remainingecosystems. In widely varying degrees they jeopardize the precarious well-beingof all human beings, especially and most immediately vulnerable groups directlydependent on natural resources for their very survival.

Today, overreliance on environmentally inappropriate, unfair and oftenineffective land, forestry, mining, water and other natural resource laws – as well asalmost exclusively quantitative measures of development – stubbornly endures. This,in turn, exacerbates and reinforces in many areas intra-national and internationaldisparities in regards to wealth, poverty, and fairness, as well as environmental resourcesand threats. Many environmental/ conservation initiatives, especially those intendedto protect important areas of biological diversity, remain largely indifferent and ofteneven hostile to economic development. Too often these conservation initiatives alsoignore human rights and cultural considerations, including the aspirations and interestsof indigenous peoples and other local communities.

Legal and other scholars, policy scientists, researchers, community advocatesand others are studying and analyzing the multidimensional nature of these seeminglyirresolvable challenges. Many increasingly perceive human rights, environmentalprotection and economic development objectives as complementary, rather than asunrelated or opposing objectives.

Despite an evolving and promising tripartite approach2 that jointly addresseshuman rights, environmental and economic concerns, and enduring international economiccrises, the prevailing and often single minded pursuit of economic growth and individualprivate property rights still dominates, overwhelmingly. This pursuit is premised on theoreticaland quantitative models that subordinate and too often ignore environmental, labor andhuman rights concerns, especially when they cannot be easily assessed monetarily.


2 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 contributedto increasing legal support for environmental justice on international, national andlocal levels. One of the most positive indicators is broadening support for the legalrecognition of native/aboriginal title, especially in nations once subject to Britishcolonialism.3 The trend is readily evident in international law instruments, particularlythe United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),which was adopted by the General Assembly on 13 September 2007.4 The UNDRIPprovides a basis for demanding greater and more meaningful participation ininternational decision making processes. Unlike other legal instruments, the Declarationdoes not limit the requirement for consultation and cooperation to the national level.5

The increasing legal support for environmental justice and meaningfulparticipation by vulnerable groups, including indigenous peoples and other originalrural long-term-occupant local communities, is not only motivated by concerns aboutbasic fairness. Rather, it is a rational response to a growing body of research thatdemonstrates the vital role local knowledge and incentives play in the conservation ofbiological and other resources, including carbon stored in trees. A recent report by theWorld Bank no less concluded that the amount of forest cover and biodiversity withinindigenous territories is higher than expected, and much higher than within strictprotected zones and areas not inhabited by indigenous peoples.6


3 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 GeneralAssembly 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; WorldBank Operational Policy 4.10 of 2005.5 Foundation for International Law and Development (FIELD). Ways for Indigenous Peoples groups toadvance adaptation concerns and solutions through international fora (mimeo.) (2009). Prepared for theInuit Circumpolar Council in Alaska (on file with the Author).6 A. Nelson and K. Chomitz, Do Protected Areas Reduce Deforestation?: A Global Assessment withImplications 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 higherwithin indigenous peoples’ territories than outside, two times higher than expected. See also The Wealth ofthe 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-ecosystems-fight-poverty (last accessed Oct. 30, 2011); A. Molnar, S. Scherr and A. Khare. Who Conserves the World’s

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

Self-Determination vis-à-vis Native/Aboriginal Title

Although related, there are major differences between concepts of self-determination and native/aboriginal title. In Roman law the concept of imperium, orsovereignty, was often referred to as formal legal authority exercised by seniorgovernment officialdom over territorially expansive areas, sometimes with virtuallyabsolute 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 basedon 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 inscope. It referred to legal authority to manage and otherwise control the use andexploitation of specific areas of land and other natural resources.7

Pursuant to the foregoing understanding, this paper deals solely withdominium. It does not purport to address issues related to self-determination ofindigenous peoples, despite the overlapping aspects of imperium and dominium.8


Forests? Community-Driven Strategies to Protect Forests and Respect Rights, Washington, DC, Rights and ResourcesInitiative (2004); Ed Ayres, Mapping Diversity: Mapping the Nature of Diversity: A Landmark ProjectReveals 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 Peoplesand Conservation,” CONSERVATION BIOLOGY 424 (1993).7 The author owes his understanding of the difference between imperium and dominium to extendedconversations during the 1980s with the late professor of Roman law at the University of the PhilippinesCollege of Law, Perfecto V. Fernandez. 8 An anonymous reviewer of an earlier draft of this paper observed that “Whereas all peoples (includingindigenous peoples) have the right to self-determination, all persons have property rights. The AfricanCharter on Human and Peoples’ Rights consciously makes this distinction between the two sets ofrights.” 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., sovereigntyand self-determination, arguably pertain only to inchoate rights of indigenous peoples,and not to other local communities including those comprised of original, long termoccupants. In the author’s opinion, international laws concerning native/aboriginaltitle pertain to both indigenous and some other local communities comprised of originallong term occupants whether or not their property rights are yet recognized anddocumented by the nation state in which they are located.9

It merits emphasizing that “The character of international law has evolvedwith shifts in the ordering of political power and burgeoning of international institutionsthat 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 internationallaw “has been made to include a burgeoning and influential transnational discourseconcerned with achieving peace and a minimum of human suffering.”


9 There are no reliable estimates of the number of original long term occupants who would not be widelyconsidered, or in many instances even self-identify, as indigenous. Based on the author’s knowledge andexperience over three decades working on legal aspects of land and other property rights issues concerning ruralpeople, 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 andSaramaka below) and Cebuano vegetable farmers on the southern end of the Philippine island of Cebu, whofarm on slopes long considered by the Republic of the Philippines (and its colonial predecessors) to be classifiedpublic forest (albeit denuded) land. These Cebuano farmers, and millions of other Filipinos like them, are alsoindigenous, at least in the same way the Irish are indigenous to Ireland and the Kurds to Kurdistan, and arepoor and ostensibly “squatters”. Some farm the same land as their great-great grandparents, and there are nooverlapping claims by any other indigenous ethnic group, only by the state. To argue otherwise because theyshare 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 solvehuman rights problems. Special Rapporteurs are appointed by the UN Secretary General, are independent ofgovernments, and are not financially compensated but can receive personnel and logistical support. Upongovernmental invitation Special Rapporteurs often conduct in-country fact-finding missions to investigateallegations of human rights violations. Special Rapporteurs also regularly assess and verify complaints made byalleged victims of human rights violations. Verified complaints result in the issuance of an urgent letter orappeal to the national government where the violation has occurred.

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He goes on to aver:

This modern discourse of peace and human rights, which tempers positivismin international law, represents in significant measure, the reemergence ofclassical-era naturalism, in which law was determined on the basis of visionsof what ought to be, rather than simply on the basis of what is. 12

In Prof. Anaya’s words “An array of procedures involving internationalinstitutions exist encouraging states to comply with their obligations under internationalhuman 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 legalrecognition of native/aboriginal title.15 In other words, from Canada to Malaysia,South Africa to Australia, Papua New Guinea to Brazil, international customarylaw, based primarily on a growing number of national laws and cases, as well asinternational instruments, principles, and court decisions, now prescribes thedomestic legal recognition of aboriginal/indigenous property rights.

This includes an increasing number of recent and encompassing indicatorsreflected in international laws that recognize the rights of indigenous peoples and others inlong occupied, ancestral areas, including rights to land, forests, trees, waters and othernatural resources local peoples invoke and depend on. As stated in October 2007 by the


12 See note 10 at 50 (emphasis in original).13 See note 10 at 290.14 The Statute of the International Court of Justice recognizes the existence of customary international lawin Article 38(1)(b), incorporated by Article 92 into the United Nations Charter: “The Court, whose functionis to decide in accordance with international law such disputes as are submitted to it, shall apply...internationalcustom, as evidence of a general practice accepted as law.” See also Articles 34 to 38 of the Vienna Conventionon 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.

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Supreme Court of Belize in Cal v. Attorney General16 there already are an “overwhelmingnumber” of states reflecting “the growing consensus and the general principles ofinternational law on indigenous peoples and their lands and resources.”17

The trend in support of legal recognition of native/aboriginal titles heldby indigenous peoples and other original long-term occupants is clear in internationallaw and international comparative (national) law. This trend reflects broadeningacknowledgment, and in some national contexts politically necessary amelioration, ofenduring and fundamentally unfair legal arrangements. It builds upon growing awarenessthat the local knowledge and practices of long-term occupants often contribute toconservation and sustainable management of forests and biodiversity. This developmentis evident even within the World Bank,18 and in some instances has resulted in localcommunities receiving monetary encouragement for continuing to provideenvironmental services that promote conservation and sustainable development.19

The emerging norm of free prior and informed consent (FPIC) manifestsone aspect of the trend towards the development of international law supportiveof native/aboriginal title, including legal standards that protect the rights, interestand well-being of local rural communities regarding the natural resources theydepend on for their lives and livelihoods.20 Similar to community-based propertyrights (CBPRs), 21 including native/aboriginal title, the right to prior informed consentof indigenous and other local communities can be viewed as a human right that derives


16 Claims Nos. 171 and 172 (2007) available at www.law.arizona.edu/depts/iplp/advocacy/maya_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/servicos-

ambientais/o-que-e-servico-ambiental (last accessed October 30, 2011); Fair Deals For Watershed Services InIndonesia, http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=448:fair-deals-for-watershed-services-in-ind (last accessed October 30, 2011).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. Int’l Envtl. L. Rev.. See also F. McCay, FPIC in International and Domestic Law, Address at the Briefing for World BankExecutive 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 lawconcepts; the existence of a right to FPIC is not necessarily dependent on governmentsor any creation, grant or recognition by a particular nation state.22

Another significant development involves ongoing efforts to identify andarticulate more clearly the responsibilities of non-state actors under international law.More specifically, the UN High Commissioner for Human Rights in 2005 requested theappointment of a Special Representative to, among other things, “identify and clarifystandards of corporate responsibility and accountability.”23 The Special Representativenoted that international instruments clearly impose at least an indirect responsibilityon corporations. “The duty requires states to play a role in regulating and adjudicatingabuse by business enterprises or risk breaching international obligations.”24

A consortium of leading international environmental NGOs, including theWorld Conservation Union (IUCN), the World Commission on Protected Areas (WCPA)and the World Wide Fund for Nature/World Wildlife Fund (WWF), promulgated a JointPolicy Statement on Principles and Guidelines on Indigenous and Traditional Peoples andProtected 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 NaturalResources? 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 AdvokasiMasyarakat - The Institute for Policy Research and Advocacy (ELSAM); International Center for EnvironmentalLaw (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, PromotingLegal Recognition of Community-Based Property Rights, Including the Commons: Some Theoretical Considerations. Presentedat a Symposium of the International Association for the Study of Common Property and the Workshop inPolitical 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 insome cases fee simple title; and may or may not be recognized by national or local authorities, and may or maynot 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 andother Business Enterprises, Human Rights Resolution 2005/69, UN Doc. E/CN.4/2005/L.10/Add.17 (April20, 2005).24 Supra.

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lands, territories, waters, coastal seas and other resources which they traditionallyowned or otherwise occupy or use, and which fall within protected areas.”25

The broadening concept of international environmental justice andconservation and duties to promote and protect it reflects an ever more globallyacknowledged basic moral principle: human beings, including those belonging toindigenous and other local communities, have a basic human right to participateeffectively in official decision-making processes that directly impact the naturalresources they depend on for life and livelihoods. The section that follows presentsthe 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 andjudicial decisions, human rights exist and should be respected.26 By now it is likewiseevident that sustainable development and environmental justice are symbiotically related,compatible, and need be jointly pursued.27 These legally cognizable and often


25 IUCN, WCPA & WWF, Joint Policy Statement on Indigenous and Traditional Peoples and ProtectedAreas: Principles and Guidelines (1996) available at http://www.worldwildlife.org/what/communityaction/people/partneringwith/WWFBinaryitem6053.pdf (last accessed October 30, 2011).26 The UN Covenant on Civil and Political Rights states unequivocally in Part Three, Article 6 that “Everyhuman 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 developmentshould be fulfilled so as to meet equitably the developmental and environmental needs of present and futuregenerations.

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complementary rights constitute a progressive and impressive array of 20th Centuryadvances in legal norms within and among our human community.

The UN Universal Declaration of Human Rights best expresses the right tohuman existence and dignity.28 Other human rights relevant to processes for securinglegal recognition of local property rights include the right to development,29 the rightto participate,30 the right to assemble,31 the right to information,32 the right to fairadjudication and equitable redress of grievances,33 the right to share the benefits ofgenetic resources located within indigenous territories,34 the right to the conservationand protection of the environment,35 the right to free and prior informed consent,36


28 The Preamble of the UN International Convention of Civil and Political Rights affirms that thisright to human life “arises from the inherent dignity of the human person.”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 agendafor economic and social development. Article 23 of the Declaration on the Rights of Indigenous Peopleselaborates: “Indigenous peoples have the right to determine and develop priorities and strategies forexercising their right to development. In particular, indigenous peoples have the right to be activelyinvolved in developing and determining health, housing and other economic and social programmesaffecting 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 paya particular attention to the right to development and that civil and political rights cannot be dissociatedfrom economic, social and cultural rights in their conception as well as universality and that the satisfactionof 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 onthe consent of people and in conformity with the principles of the Covenant. The Covenant is largelyconcerned with elections, rights to vote, run for office, assemble, etc. Remarkably, except for UN DRIP andthe Aarhus Convention for Europe, as of 2010 there is no widely recognized right in international lawensuring that individuals and local communities can participate in environmental decisions that directlyimpact 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 relevantto this paper, including rights to social protection, to an adequate standard of living, to education andenjoyment of the benefits of cultural freedom and scientific progress. It also provides equal rights forwomen and men; the right to just and favorable conditions of work; the right to protection and assistanceto the family; the right to adequate standard of living; the right to education; the right to take part incultural life; and the right to enjoy the benefits of scientific progress and its applications. These rightswere 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 tocultural integrity.38 Some of these rights, and others, are expanded upon in Agenda 21.

The first major international law instrument to link human rights andenvironmental-protection objectives is the Stockholm Declaration on the UnitedNations Conference on the Human Environment of 1972.39 Following Stockholm, amajor shift in thinking and in development programs took hold and spread.40 Sincethen the realm of international law and environmental concerns has begun to addressan expanding number of environmental justice issues.

Examples of growing interest in support for environmental justice are foundin various legal instruments promulgated by the international community. Foremost,in regard to this paper’s topic, is the historic 2007 United Nations Declaration onIndigenous Peoples (UNDRIP). It affirms the righteousness of indigenous peoples’struggles, including their resistance to centuries of injustice.


34 Article 8(j), UN Convention on Biodiversity. See also P. Gepts. Who Owns Biodiversity and How Should theOwners 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 theUNDRIP. An earlier indicator of the right can be found in the Convention on Biological Diversity in regards toindigenous peoples access and benefit sharing of genetic resources. FPIC ensures a formal role for local people—and some form of veto power—in consultations and decisions regarding local development and conservationprojects. It is intended to secure the rights of indigenous peoples and local communities: their rights to self-determination, to control access to their land and natural resources, and to share in the benefits when theseresources are utilized by others. See A. Perrault, K. Herbertson and O. Lynch, Partnerships for Success inProtected 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 IndigenousCultures: 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 BackgroundNote (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 EmergingStandards in International Law and Global Society. Paper prepared for the Earth Council, Costa Rica and the WorldResources Institute (1996), http://www.ciel.org/Publications/olpaper3.html (last accessed Oct. 30, 2011).

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Evidence of the favorable trend supporting recognition of native/aboriginaltitles held by indigenous and some other original-long-term-occupant local communitiesin international law is readily apparent and widespread in UNDRIP and elsewhere.At minimum the prevailing trend is to ensure that local communities are notinvoluntarily and forcibly removed from their ancestral domains and are able toparticipate meaningfully in official decisions that directly impact the naturalresources they depend on for their lives and livelihoods. This trend is evident inEurope, Africa, the Americas, Asia and the Pacific.41

The UNDRIP recognizes:

the urgent need to respect and promote the inherent rights of indigenous peopleswhich derive from their political, economic and social structures and from theircultures, 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 contributesto sustainable and equitable development and proper management of theenvironment

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


41 See part II below.42 UNDRIP, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (last accessed Oct. 30, 2011).43 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 theDeclaration, the U.S. ambassador to the UN announced that the United States is undertaking a review of itsopposition. See http://blogs.alternet.org/speakeasy/2010/04/24/united-states-re-examines-opposition-to-un-declaration/ (last accessed Oct. 30, 2011). Only Canada and the USA remain holdouts today. Seewww.survivalinternational.org/news/5846 (last accessed October 30, 2011). Canada’s House of Commonspassed a motion on April 8, 2008 endorsing the UNDRIP and calling upon Parliament and the Governmentof 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 thevote, such as Ethiopia, Cote d’Ivoire, Chad, Somalia, Uganda, Papua New Guinea and several other PacificIsland 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. Norelocation shall take place without the free, prior and informed consent of the indigenouspeoples 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 inDeveloping Countries.45 Enacted in 1957 and 1989, ILO Conventions 107 and 169 hadfor decades been the leading international law instruments on native/aboriginal title.46

Various other supportive declarations and conventions helped lay the foundationfor the UNDRIP. These include the 1992 Rio Declaration from the United NationsConference on Environment and Sustainable Development, which also adopted Agenda21.47 Both documents address an array of important issues related to environmental justice.

The 1995 Copenhagen Declaration by the World Summit on SocialDevelopment was a watershed in its emphasis on the economic dimensions ofenvironmental justice. Paragraph Six declares:

Equitable social development that recognizes empowering the poor to utilizeenvironmental resources sustainably is a necessary foundation for sustainabledevelopment. We also recognize that broad-based and sustained economic growthin the context of sustainable development is necessary to sustain socialdevelopment and social justice.48


44 UNDRIP, supra. Previously, International Labor Organization Convention No. 169 was the leading andmost explicit international law instrument specifically focused on the rights of indigenous and tribalpeoples. See http://www.ilo.org/ilolex/convde.pl?169 (last accessed Oct. 30, 2011). The Convention forthe 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 20countries. See http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm and http://www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm (last accessed Oct. 30, 2011).46 The two conventions, especially the provisions on land, territories and resources, have a wide coverageand are similar. ILO Convention No. 107 assumed the eventual “integration” of indigenous and tribalpeoples. 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).

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Two years later, in 1997, the UN General Assembly reiterated the premiseenunciated in Copenhagen as it adopted a program for further implementation of Agenda21. It stressed anew that “Economic development, social development and environmentalprotection are interdependent and mutually reinforcing components of sustainabledevelopment. Sustained economic growth is essential to the economic and socialdevelopment.”49 The “Rio plus ten” gathering in Johannesburg in 2002 again reiteratedsupport for a tripartite approach in its Declaration on Sustainable Development.50

The concept of environmental justice embraces a special concern forprecariously situated local communities, more commonly referred to as “vulnerablepopulations.” The second United Nations Conference on Human Settlements (HabitatII) in an internationally negotiated agreement reemphasized the importance ofvulnerability,51 as have more recent studies examining the linkages between vulnerable


49 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 accessedOct. 30, 2011).52 R. Mearns and A. Norton (eds.), Social Dimensions of Climate Change: Equity and Vulnerability in a Warming

World, Washington D.C.53 Article 8(j) of the Convention provides that “Each Contracting Party shall, as far as possible and asappropriate … subject to its national legislation, respect, preserve and maintain knowledge, innovations andpractices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainableuse of biological diversity and promote their wider application with the approval and involvement of theholders of such knowledge, innovations and practices and encourage the equitable sharing of the benefitsarising 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 non-governmental organizations and local populations, both women and men, particularly resource users, includingfarmers and pastoralists and their representative organizations, in policy planning, decision-making, andimplementation and review of national action programmes (emphasis supplied).”55 The Aarhus Convention mandates wide access within Europe to environmental information, participationand justice. See http://www.unece.org/env/pp/documents/cep43e.pdf (last accessed Oct. 30, 2011).

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populations and climate change.52 These definitions, as well as increased success byadvocates for indigenous peoples and other local communities, and environmentaljustice are evident in many international instruments such as the Convention onBiodiversity,53 the Desertification Convention,54 and the Aarhus Convention.55 Theseinstruments reaffirm the vital role of local communities in promoting sustainabledevelopment and environmental justice.56

This emerging new norm is likewise evident within international environmentalorganizations and their affiliates. For example, the World Wildlife Fund (WWF), citingUNDRIP, has proposed principles for environmental program management that includea mandate “to recognize and respect … customary rights to lands, territories andresources” of indigenous and other local communities. The Conservation Initiative onHuman Rights includes WWF and seven other major international environmentalorganizations. The conservation principles agreed to include respect for human rights.Member organizations are committed to make “special efforts to avoid harm to thosewho are vulnerable to infringements of their rights and to support the protection andfulfillment of their rights within the scope of our conservation programmes.”57

In many local situations the most desirable and appropriate outcome is for nation-states 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, butencompass an array of different and often overlapping community-based propertyrights (CBPRs), including individual, family and group rights. Especially in regards tooriginal, long-term occupants, i.e., indigenous peoples and some other local communities,


56 Adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4September 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 Community-Based Property Rights: Insights from the Philippines and Other Nations [ital], in COMMUNITIES ANDCONSERVATION: HISTORIES AND POLITICS OF COMMUNITY AND CULTURAL RESOURCEMANAGEMENT, (P.L. Brosius, A.L. Tsing, C. Zerner, eds., 2005); A. White and A. Martin, WHO OWNS THEWORLD’S FORESTS? FOREST TENURE AND PUBLIC FORESTS IN TRANSITION, Forest Trends andCenter for International Environmental Law (2002).

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their legal rights to land and other natural resources should be considered as privategroup rights. These CBPRs encompass rights acquired pursuant to local customs andtraditions. The existence of these rights is not contingent on any state grant, although staterecognition is often desirable and increasingly mandated by international and national law.58

International law is also increasingly cognizant and supportive of non-State actors, including local communities, non-government organizations, indigenousand other local peoples’ organizations, church groups and other civil society institutions.These institutions likewise enjoy protections under international law and are key tobuilding just, vibrant, sustainable and democratic nation-states, and crafting just normsand processes for local community-state interaction.

B. International Court and Tribunal Decisions

The appropriate role of international and regional courts in shaping anddefining international law continues to develop and be debated. Regardless of one’sposition, it should be evident that the architecture for international government in the21st Century is inexorably being defined by, among others, courts and other internationalinstitutions. Essential players in the process of articulation and definition include theInternational 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 Courtof Justice, based in The Hague, Netherlands. The ICJ Opinion on Western Sahara isan authoritative rejection of the notion that land occupied by indigenous peoples atthe time European powers asserted sovereignty could be considered legally unoccupied,or “terra nullius”.

In this advisory and precedent setting opinion, the ICJ held that theindigenous nomadic peoples in the Western (Spanish) Sahara had social institutions atthe 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 thatancestral territories inhabited by nomadic peoples are not terra nullius and are not opento arbitrary state acquisition. This case brought an end to the legitimacy of the colonialconcept of terra nullius. It rejected the invocation of terra nullius to usurp native titlesthrough occupation of territories already inhabited by indigenous peoples, such asthe peoples of the Western Sahara.59 The majority stated that:

Whatever differences of opinion there may have been among jurists, the State practiceof the relevant period indicates that territories inhabited by tribes or peoples havinga social and political organization were not regarded as terra nullius. It shows that inthe case of such territories the acquisition of sovereignty was not generallyconsidered as effected unilaterally through ‘occupation’ of terra nullius by originaltitle 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 concerningindigenous peoples’ property rights. An indigenous group in Nicaragua, the Awas Tingni,cited the Inter-American Convention on Human Rights,62 which includes the right toproperty, and claimed their rights had been violated by the arbitrary issuance of timberconcessions to foreign corporations which overlapped their ancestral domain. The courtheld 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 theICJ issued an advisory opinion on Kosovo concluding that local indigenous groups have a right ininternational law to declare their independence from subjugating neo-colonial states. See http://www.icj-cij.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 de31 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).62 www.hrcr.org/docs/American_Convention/oashr.html.(last accessed Oct. 30, 2011).

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community. It also recognized the tradition of communal land ownership among indigenouspeoples and the connection between indigenous groups and the land they occupy.

Awas Tingni v. Nicaragua is a landmark case decided by an international tribunalwith legally binding authority. It found a government in violation of the collective landrights of an indigenous group within national boundaries. It is an important precedent forthe rights of indigenous peoples in international law, and a precedent-setting decisionwithin the Inter-American human rights system. On December 15, 2008, Nicaragua’sAttorney General and other officials traveled to Awas Tingni to formally hand overtitle for some 73,000 hectares of their traditional homelands.63

Moiwana Village v. Suriname64

On November 29, 1986, soldiers of the National Army of Surinamesurrounded the Maroon village of Moiwana and killed at least 30 people. The manywounded fled with other survivors, some forced to walk three of four days to safety inFrench Guiana. Efforts to investigate the massacre commenced in 1989 by the civilianpolice but soon floundered. In August 1990, the police inspector was shot dead andhis body dumped near the office of the then-deputy commander of the militarypolice. Other police officers assisting the inspector fled the country and were grantedpolitical asylum in the Netherlands.

Until 1997, the survivors and their allies continued pressing for aninvestigation. A private prosecution procedure was initiated in 1996 and submitted tothe Attorney General of Suriname who failed to respond, even to two requests fromthe Suriname’s judiciary. Concluding it was not possible to secure justice, the survivorsfiled a complaint with the Inter-American Commission on Human Rights. TheCommission found Suriname in violation of the American Declaration and


63 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 andcompensate the survivors. It likewise opined that the massacre was a crime againsthumanity and violated international law.

On June 15, 2005 the Inter-American Court ruled unanimously thatSuriname 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 HumanRights65 and ordered Suriname to redress the violations.

Article 21 of the Convention is of special relevance to a paper ininternational law and native/aboriginal title. It provides that:

• Everyone has the right to use land and enjoyment of his property. Thelaw 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 communitymembers may be considered as the legitimate owners of their traditional land; as aconsequence, they have the right to use and enjoyment of that territory.” It thereforeordered the Government of Suriname to:

adopt such … measures are necessary to ensure the property rights of theMoiwana community in relation to the traditional territories from whichthey were expelled, and provide for the members’ use and enjoyment ofthose territories. These measures shall include the creation of an effectivemechanism for the delimitation, demarcation and titling of said traditionalterritories.”


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 hadviolated the human rights of 130 named members of the village of Moiwanaand ordered to Suriname to make things right, including under Article 21 ofthe American Convention on the right to property.

Saramaka v. Suriname66

The Inter-American Court went further in Samarka v. Suriname. Suriname’sMaroons are descendents of African slaves who rebelled against French and Dutchcolonial regimes in the Americas. They are not identified as indigenous but are consideredto be tribal, and fall under international law protections offered by the InternationalLabor Organization (ILO) in Conventions Nos. 107 and 169.67

One of the largest groups of Maroons is the Saramaka who number around55,000. About half of the Samaraka live in ancestral areas of Suriname as did theirforebears for over two hundred years. Their society is organized into twelve Los,also referred to as clans or groups. Each member of the Samaraka communitybelongs exclusively to one Lo. The matrilineal Los are the basic unit of groupownership of land and other natural resources, in which individual and extendedfamily units have subsidiary rights of use and occupation.

Since the mid 20th century the Samaraka have been threatened by outsideinterests, including the Government of Suriname. In the 1960s the Dutch colonialgovernment teamed up with Alcoa to construct a huge hydroelectric dam to provideenergy for the nearby capitol city of Paramaribo and an Alcoa smelter. Soon aftera new artificial lake covered almost half of the Samaraka’s ancestral domain anddisplaced an estimated 6000 inhabitants.68


66 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 46.68 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 bysoldiers from the Suriname army from even accessing their gardens. They were toldthat 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. Duringthe ensuing years the local communities began to organize and in 2000 filed a petitionwith the Inter-American Commission on Human Rights, which in turn requested in2002 and 2004 that Suriname suspend all logging concessions and mineral exploration.The de facto injunctions slowed some logging activities but Suriname failed to complywith 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 Surinameviolated the rights of the Samaraka under Article 21 of the American Convention70

“by not adopting effective measures to recognize its communal property right tothe lands it has traditionally occupied and used.71 It ordered Suriname to removelegal provisions that impede protection of the right to property of the Samarakapeople and adopt, in its domestic legislation, and through effective and fullyinformed consultations with the Samaraka people, legislative, administrative andother measures needed to protected, through special mechanisms, the territory inwhich the Samaraka people exercises its right to communal property.

The Court also recommended that Suriname repair the environmental damagecaused by the logging concessions and make reparation and due compensation to theSamaraka people for the damage done by the violations established in this report.72


69 http://www.richandsally.net/files/Victory_of_Saramakas_vs_Suriname.pdf (last accessed Oct. 30, 2011).70 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 2002on behalf of indigenous Pehuenche families in Chile. It sought reparations becausethe human rights of the Pehuenche people were being violated by the construction ofseveral 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 whocontinue their traditional lifestyle on ancestral lands.

The IACHR obliged the Chilean government to negotiate a precedent-setting settlement that will be monitored by the Commission and involves: 1) a promiseto attempt to reform Chile’s constitution to secure the protection of indigenous rights;2) compensation directly to the displaced families, including land, educationalscholarships, and US$350,000 per extended family; and, 3) the creation of a Municipalitywhereby the Mapuche/Pehuenche will have local control over their ancestral domain.73

The Chilean government also committed to implementing several measuresof 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 Chile’s 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 theMapuche/Pehuenche people and ensuring their meaningful participation in official


73 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 inChile’s AltoBioBio, mimeo. (2004).

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development processes, including the creation of a municipality in the UpperBíoBío

The “friendly settlement” provides for Pehuenche families to receivereparations for relinquishing their legal rights to natural resources that will beflooded by the dams. For the Pehuenche, reparations symbolize the responsibilityof the Chilean government under international law for human rights violationsthey have suffered. The families gained recognition of their rights over lands, technicalsupport to promote agricultural productivity, educational scholarships, andmonetary compensation in the order of US$300,000 per family. In turn, they agreedto 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 formulateand lay down principles and rules aimed at solving legal problems.75 On February4, 2010 the Commission ruled that the eviction of the Endorois people for tourismdevelopment violated their human rights. The violation of indigenous land rightsover generations, including illegal displacement in Kenya and beyond, was nottotally resolved in the decision.

The African Commission found that the Kenyan government continues to rely oncolonial laws that prevent some local communities from gaining legal recognition of theircustomary property rights, but allowed others, such as local authorities to obtain legallyrecognized rights over indigenous areas, ostensibly in trust for the local communities. The


74 On May 27, 2009 the Commission declared Southern Cameroonians “a people,” the culmination of a six yearstruggle against the Republic of Cameroon, See Andrew Maki, Collective Rights but no Independence forSouthern Cameroons, http://hrbrief.org/2010/01/collective-rights-but-no-independence-for-southern-cameroons-2/ (last accessed Oct. 30, 2011).75 Communication 276/03 – Centre for Minority Rights Development (Kenya) and Minority Rights GroupInternational on behalf of Endorois Welfare Council v Kenya. See also Indigenous Peoples in Africa: TheForgotten 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 seizedthe ancestral property.76 The Commission condemned the expulsion of the Endoroispeople from their ancestral domains near Lake Bogoria National Reserve, Kenya. It is aprecedential victory for indigenous and some other local communities in Africa and beyond.

II. International Customary (Comparative/National) Law andProperty Rights

A. 21st Century Colonial Legacies of Government Ownership

An often overlooked factor behind enduring laws in regards to modernland and natural resource ownership concerns the impact of tenacious coloniallegal legacies. These legacies within national contexts typically commenced withthe usurpation by colonial regimes of indigenous peoples and other local CBPRs.

Beginning in the early 16th century, Hernando Cortez and his minions andsuccessors had profound effect on indigenous communities in what is now Mexicoand eventually throughout Latin America and as far as the Philippines. Vast areas ofindigenous territory in the Americas and beyond were arbitrarily usurped, in legaltheory if not always fact.77

Ironically, many colonial laws decreed by the Spanish and Portuguese Crownswere ostensibly on behalf of native populations, and eventually covered all Latin America.Meanwhile, throughout North America and Africa the ancestral domains of indigenouspeoples and First Nations were also “legally” usurped by the colonial laws and practiceof European, and subsequently American and African, soldiers and their compatriots.

In Asia during the 1860s, beginning in Ceylon (Sri Lanka today), anextraordinary wave of similar arbitrary and ostensibly legal usurpations inspired


76 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 Ecuador’sRainforests [ital], 16 Geo. Int’l Envtl. L. Rev. 763 (2004).

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by British forestry laws were enacted. This development moved steadily eastwardthrough India, Burma, Thailand, Cambodia, Vietnam, Malaysia, Indonesia and thePhilippines.78 By the dawn of the 20th century almost all territory in Europeancolonies 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 andprotected forests, including the carbon within trees, were arbitrarily deemed to besquatters on colonial government land, regardless of length of occupancy. In manynow 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 legalapproaches to forest management were evident in southern Africa and Asia by the late1970s; they include India’s Joint Forest Management, the Philippines Integrated SocialForestry and Zimbabwe’s CAMPFIRE programs.79

B. New Standards in International Customary Law (listed alphabetically andby global regions)

The following national examples from fourteen nations (a major decision by India’sSupreme Court is pending) and four international law-making institutions, are not intendedto be exhaustive, or completely up to date. Rather, they provide proof that a growingnumber of nation states are moving to toward legal recognition of indigenous peoples’and some other local communities’ CBPRs, and in particular native/aboriginal title.


78 O. LYNCH and K. TALBOTT, BALANCING ACTS: NATIONAL LAW AND COMMUNITYBASED 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 previouslyallowed, these programs retain state (public) ownership and control. A decision on theconstitutionality of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of ForestRights) 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 customaryrights as including property rights in their constitutions and/or land laws, all but onesince 1986.80 A research report in 2008 concluded that “The overall trend in law andpolicy has been toward an increased recognition of the role that communities play inforest management and their historical rights to territories.” It identified policy andlaw 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 landin 30 tropical forest countries is now privately owned by indigenous peoples and someother local communities, an increase from 15% in 2002. 82 Taken together, these facts, theprevious discussion of international law and principles, and the following summaries ofnational-level legal developments, provide further proof that international law nowmandates legal recognition of native/aboriginal title and other private community-basedproperty rights (CBPRs). They are multi-facetted examples of the evolution ofinternational 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 1,000Kalahari Bushmen had been unconstitutionally evicted from their ancestral huntinggrounds and had the right to return. The court ruled that they were wrongly evicted bythe Botswanan government several years earlier. Supporters of the Bushmen - traditionalhunter-gatherers whose proper name is the San - accused the government of evictingthem to exploit diamond and mineral wealth on their reserve.

81 W. Sunderlin, J. Hatcher and M. Liddle. From Exclusion to Ownership? Challenges and Opportunities inAdvancing Forest Tenure Reform, Washington, DC: Rights and Resources Initiative (2008), pp. 26-28.82 TROPICAL FOREST TENURE ASSESSMENT: TRENDS, CHALLENGES ANDOPPORTUNITIES, at 12-13 (Rights and Resources Initiative, 2009).83 The following discussion of domestic/national law is solely arranged alphabetically by region, and notby 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 ancestraldomain in the Central Kalahari Game Reserve. After a 2-1 ruling, Judge MpaphiPhumaphi, who delivered the swing vote, said the government had forced them out ofthe reserve by depriving them of their livelihood. “In my view, the simultaneous stoppageof the supply of food rations and the stoppage of hunting licenses is tantamount tocondemning the remaining residents to death by starvation,” he said.

The case marks the first time a modern, post-colonial national African courthas recognized the ancestral domain rights of indigenous people. It is also a precedentsetting 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 decisionand held that the Bushman did not have a right to use an already stabled well on theirtraditional 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 ofBotswana “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, whoare descended from Khoikhoi- and San-speaking people. Their ancestral area was

84 See February 2010 Advance Report of the UN Special Rapporteur on Indigenous Rights calling on theBotwana Government to do more for Botswana’s 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

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. In1847, the British Crown annexed the area including land which would become thesubject of the Richtersveld claim.

Following annexation, the Richtersveld people continued to live on theirland until 1925, when diamonds were discovered. Beginning that year, theGovernment issued licenses to dig for diamonds to third parties, and as morelicenses were awarded, the Richtersveld people were gradually denied access tomore and more of their ancestral domain. In 1957, a fence was erected around theentire area, denying the Richtersveld natives any access. Between 1989 and 1994all legal control of the enclosed area was vested in Alexkor Limited, a Government-owned company which continued to mine for diamonds.

The Richtersveld community argued that when their dispossession began inthe 1920s, they possessed a property right to the land based on aboriginal title. Theyargued that this title survived annexation and existed as a burden on the Crown’s title.Their dispossession, founded upon a notion that the Richtersveld people were toouncivilized to possess recognizable legal rights (see Western Sahara above), was ethnicallyand culturally discriminatory.

The Land Claims Court rejected these arguments, and the Richtersveldcommunity appealed to the Supreme Court of Appeal (SCA).87 The SCA unanimouslyoverturned all of the critical findings made by the land court. It found that at the timeof annexation, the Richtersveld people had a communal ‘customary law interest’ whosesource was “the traditional laws and customs of the Richtersveld people.” The Courtnoted the similarity between this ‘customary law interest’ and aboriginal title.

The Court then cited passages from Australia’s Mabo v Queensland decision(see below), which among other things emphasized two important principles. First, achange in sovereignty alone does not destroy pre-existing property rights. Second, theprinciple expressed in In re Southern Rhodesia that some Indigenous people are notsufficiently civilized to have recognizable property rights was rejected ala Western

87 http://www.lrc.org.za/Docs/Judgments/Richtersveld_v_Alexor.pdf (last accessed Oct. 30, 2011). Seegenerally, www.supremecourtofappeal.gov.za (last accessed Oct. 30, 2011).


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Sahara. The Court adopted these principles and found that the Richtersveld people’scustomary law land rights survived annexation. Finally, the Court held that theGovernment’s failure to recognize the Richtersveld people’s rights in land (on theground of ‘insufficient civilization’) after diamonds were discovered was discriminatory.As such, the Richtersveld people were entitled under the Restitution Act to bothrestitution and legal recognition of their ancestral domain rights.

The Americas

Belize

On 18 October 2007, the Supreme Court of Belize ruled in Cal v. AttorneyGeneral88 that the national government must recognize indigenous Mayans’ customarytenure to land and refrain from any act that might prejudice their use or enjoyment oftheir ancestral domain. The landmark ruling was a victory for indigenous Mayancommunities throughout Belize.

The High Court ordered the government of Belize to “determine, demarcateand provide official documentation of Santa Cruz’s and Conejo’s [two Mayan villages]title and rights in accordance with Maya customary law and practices.” It also orderedthe government to desist from any logging, mining or other resource exploitationprojects on Mayan land. The decision was the first judgment rendered with referenceto the 2007 UN Declaration on the Rights of Indigenous Peoples.

In 2001, the Belize government began giving rights to logging, oil, and hydro-electric interests on traditional Mayan lands, denying Mayan farmers access totheir ancestral domains. In the decision, the Chief Justice of Belize stated thatBritish colonial and subsequent acquisition of land in Belize did not abrogatethe Mayan people’s primordial rights to their land.

88 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 engagein ceremonies and other activities on land within and around their communities; andthat these practices have evolved over centuries from patterns of land use and occupancyof the Maya people.” The Supreme Court found that the Mayans had a “complex traditionalset of land tenure regulations.” Furthermore, “all attempts to divide up the customaryvillage land into arbitrary-sized parcels are doomed to fail to establish a stable land-tenureregime” because the Mayan lifestyle “requires access to a variety of land types in order togrow 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 andfish 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 lightlyinferred.

Referring to Delgamuukw v British Columbia (see below), the High Court observedthat “Indigenous title is now correctly regarded as sui generis.” In other words, the very factof “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 affirmedthe 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 principlesof general international law contained in the declaration should be respected.Moreover, it noted that the DRIP was adopted by an “overwhelming number” ofstates thus reflecting “the growing consensus and the general principles ofinternational law on indigenous peoples and their lands and resources.”

Brazil

The Brazilian Constitution and national legal framework “provides for a uniqueproprietary regime over the Brazilian Indians land...which reserves to Brazilian Indians the

89 Memorandum to the Katoomba Group by R. Sales. V. Otsubo and P. Frederrighi, Trench, RossieWatanbe 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 theeconomic benefits that this sustainable use can generate.’’89 The 1988 constitution includesa so-called “Indian Chapter” that enumerates the nature and extent of indigenousrights. The constitution for the first time recognized the existence of collective rightsand acknowledged the legitimacy of community-based indigenous autonomy and socialstructures.

The Brazilian Constitution states that “Land traditionally occupied by BrazilianIndians are those that they have occupied and permanently possessed and they shall havethe 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 locatedon Indian land.91

In 2009 Brazil’s Supreme Court sided with indigenous peoples in land disputesin Amazonia that have been called critical for determining the future of an area ofrainforest the size of Western Europe. The decision formally puts the 1.7 millionhectares Raposa Serra do Sol Indigenous Reserve under legal control of indigenousAmazonians, despite a handful of large-scale farmers who also are expanding in thenorthernmost reaches of the Amazon Jungle bordering Venezuela. The decision orderedall non-indigenous residents (including industrial rice farmers) to vacate the reserve.92

90 Chapter VIII, Article 231, para. 2. Article 24 of the Indians Statute states that results of naturalresource 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=peoples-brazil. (last accessed Oct. 30, 2011).


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It also imposed nineteen conditions on local indigenous peoples’ rights to use andmanage 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 SupremeCourt 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 Britishcolonial sovereignty, and aboriginal title is protected by the Constitution of Canada. Thecourt 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 theconcerns of the peoples whose ancestral domain rights are at issue.

While aboriginal rights in Canada have also been bolstered in recent years by anumber 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 themeans 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

94 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 7696 Delgamuukw, at 36. For analysis see G. Pechlaner and D. Tindall, Changing Contexts:Environmentalism, Aboriginal Community and Forest Company Joint Ventures, and the Case ofIisaak, 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 indigenousgroups to raise such claims), the court ruled that “the laws of evidence must beadapted in order that this type of evidence can be accommodated and placed on anequal footing with the types of historical evidence that courts are familiar with.”95

The Delgamuukw decision’s other significant feature is that it provides guidancefor the adjudication and recognition of aboriginal title. Previously it had been acceptablepractice for commercial resource extraction to continue unhindered throughoutancestral domains while claims were contested in Canadian courts. Pursuant toDelgamuukw, resource extraction can no longer take place without consideration ofaboriginal 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 inCanada have also occurred, although there remain many disputes regardingimplementation. 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 TribunalDecisions, the Inter-American Commission (IACHR) obliged the Chileangovernment to negotiate a precedent-setting settlement that will be monitored bythe Commission and involves: 1) a promise to attempt to reform Chile’s constitution

97 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). Forbackground, analysis and updates of these and other agreements with Canadian First Nations see LandClaims 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 thedisplaced families, including land, educational scholarships, and US$350,000 perextended 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 decidedby an international court with legally binding authority. The Inter-American Court ofHuman Rights found a national government in violation of the collective land rightsof an indigenous group within national boundaries. It is an important precedent forthe rights of indigenous peoples in international law, and it remains a precedent-setting decision within the Inter-American human rights system.

Suriname

Two other landmark and precedent setting decisions by the Inter-AmericanCourt involved Suriname and they too have been discussed above: Moiwana Village v.Suriname and Saramaka v. Suriname. The Saramaka decision recognized aboriginal titledowned by people who were not thought of as being indigenous (despite over 200 yearsof original occupancy!) but were considered tribal.

United States

Johnson vs. M’Intosh

For all the atrocities and injustices inflicted on indigenous peoples in whatis 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

100 21 US Reports 543 (1823).101 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.


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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 alwaysacknowledged to exist. In Johnson vs. M’Intosh the US Supreme Court held in1823 that Native Americans had, at minimum, rights of occupation to theirancestral domain, although those rights could only be sold to the US Government.100

Tribal jurisdiction over native ancestral domains in the USA, however, isdefined as all land within the limits of Indian reservations. Since the 1970s the USSupreme Court has been engaged in apparent efforts to limit the scope of propertyrights held by Native Americans. The US Government is deemed to be the trustee —regrettably a not always faithful one—or guardian of Native Americans. Perhaps ofmost importance to this paper, Native Americans are not legally deemed to be squatterswithin their recognized ancestral domains (reservations). 101

Asia and the Pacific102

Australia

Mabo v. Queensland103

This ground-breaking and globally influential decision was based on findingsof fact made by the Supreme Court of Queensland: that the Murray Islanders had astrong 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;

102 Within the past year the Uttar Pradesh state government invoked the 2006 Indian Forest Rights Act andrecognized 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 ofOctober 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 accessedOct. 30, 2011). See generally www.mabonativetitle.com.


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• the source of native title was the traditional connection to or original, long-term occupation of land;

• the nature and content of native title as determined by the character of theconnection or occupation under traditional laws or customs; and

• native title could be extinguished by the valid exercise of governmentalpowers provided a clear and plain intention to do so was readily evident.

In an internationally landmark decision by the High Court of Australia on thenature and scope of aboriginal title, the court held like its counterpart in Canada thatabsent a valid extinguishment, aboriginal peoples have, sui generis, native title to landthey exclusively occupied prior to the imposition of British colonial crown sovereignty.Furthermore, the government has a special fiduciary duty to legally respect and protectnative/aboriginal title.

The decision was another blow to the long-standing colonial notion ofterra nullius.104 It recognized that the indigenous peoples of Australia have pre-existing systems of law and rights. According to the High Court, these customarynorms remained in force under the new sovereign, except where specificallymodified or extinguished by legislative or executive action.

The Court purported to achieve all this without altering the traditionalassumption 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 Crowndid not acquire an absolute title but a “radical title,” and radical title is subject tonative title rights where those rights had not been validly extinguished. (Advocates of

104 A Latin expression derived from Roman Law and translated by European colonialists as “emptyland” and “land belonging to no one”. See M.F. LINDLEY, THE ACQUISITION ANDGOVERNMENT 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, thecourt accepted that a modified doctrine of tenure operated in Australia, and that thelaw of tenure (as a product of the common law) could co-exist with the law of nativetitle (as a product of customary laws and traditions). Where there had been a validgrant of fee simple by the Crown, however, native/aboriginal title would be legallyextinguished according to Australian law.

The Mabo decision presented many legal and political problems for the FederalGovernment and the states, including:

• a requirement to make provision for permitted future development of landaffected by native title;

• establishing a process for the speedy and efficient determination of issues ofnative 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 wasamended in 1998 following the 1996 Wik decision.106 The Act established a statutorydefinition of native title and provided a means for establishing a Native Title Tribunalto determine native title, validate acts of recognition and provide for compensation.

Malaysia

Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor

105 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). Statutorypastoral leases under consideration by the court did not confer rights of exclusive possession on theleaseholders. As such, native title rights can co-exist depending on the terms and nature of a particularpastoral 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 theconcept 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 thelogging of Iban forest land in Bintulu, Sarawak, and Sagong bin Tasi & Ors v Kerajaan NegeriSelangor & Ors,109 a case involving the taking of Temuan land in Sepang in conjunction withthe building of the Kuala Lumpur International Airport. All three cases embraced thedoctrine of native title and took significant steps to extend its boundaries.

In Nor Anak Nyawai, the High Court recognized the indigenous community’slegal control over its communal forest land and enjoined further logging by a timbercompany, the defendant. In Sagong bin Tasi, the High Court recognized native titleowned by the Temuans, an indigenous people of peninsular Malaysia. It determinedthat native title included not only usufructory rights described in Adong, but alsoownership of at least a portion of the plaintiffs’ ancestral domain.

The cases illustrated the markedly different legal obstacles facing the OrangAsli of the Malay Peninsula and the indigenous peoples of Sarawak and Sabah. InNor Anak Nyawai, the decision rested on the High Court’s assessment of Sarawak’sextensive history of regulations on land use and whether they served to extinguishthe plaintiffs’ claim to native title, which they did not.110

New Zealand

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

110 See Peter Crook, After Adong: The Emerging Doctrine of Native Title in Malaysia [ital], Journal ofMalaysian 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 (176,000ha) of plantation forest and associated rents from the central government to sevenNorth Island tribes, which include more than 100,000 people.

Maori lands and forests were once legally protected by the founding Treaty ofWaitangi, signed with European settlers in 1840, but huge tracts of land were later taken forsettlement. The Maori have been pursuing grievance claims since the early 1840s. TheCentral North Island Forests Land Collective Settlement Act of 2008,111 known informallyas 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 bythe Office of Treaty Settlements, all rental and other income from the land will be held ina newly established trust holding company, whose shareholders are the Maori iwis.112

The Marlborough Sounds case has recognized the ‘native title’ aspects of theNew Zealand settlement. The Chief Justice of the New Zealand Court of Appealfound 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 onrights accrued under the treaty.113

Papua New Guinea (PNG)

Approximately 97 percent of Papua New Guinea’s total land area is covered byundocumented, customary aboriginal rights that are legally recognized by the nationalgovernment. (Similar situations exist in most Pacific Island nations.) This area encompassesthe largest remaining rainforest/wilderness in the Asia/Pacific region, and the third largestin the world. It is also home to approximately 70% of the nation’s traditional communities.

113 Ngati Apa, et al v AG & Ors 19 June 2003 New Zealand Court of Appeal.114 O. Lynch and A. Marat, “A Review and Analysis of National Laws and Policies ConcerningCustomary Ownership and the Conservation and Sustainable Development of Forests and otherBiological Resources,” Papua New Guinea Conservation Needs Assessment. Boroko: Government ofPapua New Guinea Department of Environment and Conservation (1992).


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The PNG government has attempted over the past decades to register, and insome instances subordinate, customary rights to lands, forests and other naturalresources.114 In 1998, for example, the government through a legislative act ostensiblyacquired title to land belonging to the Maisin people without their knowledge orconsent. It then leased 38,000 hectares (94,000 acres) in the Collingwood Bay area totwo companies. These companies entered into an agreement with a Malaysian loggingcompany 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 Baycarrying bulldozers and other logging equipment in June of 1999.

For the Maisin, this all-too-often surreptitious effort in PNG to illegally land grabcustomary property rights was stymied in May 2002 when a Judge of the National Court ofPNG ruled that the government had illegally sold to private development and loggingcompanies property rights to commercially exploit the customary land of the Maisin people.The court cancelled the Government’s leases and issued an order enjoining the companiesfrom entering the land without the written consent of the local communities. This decisionlegally 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 ancestraldomain 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 IndigenousCultural Communities/Indigenous Peoples (ICCs/IPs) goes back many decades. Thegreatest legal accomplishment, supported by a broad-based civil-society movement,

115 See http://www.elaw.org/node/897 (last accessed Oct. 30, 2011). On May 28, 2010 the PNGParliament enacted a new law that would protect corporations exploiting natural resources by prohibitinglitigation related to environmental degradation and landowner abuse, thereby potentially underminingthe indigenous, and typically undocumented, community-based property rights of PNG’s local clans. Acase is now pending in PNG’s Supreme Court. See J. Hance, Papua New Guinea strips communal land rightsprotections, 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 everpromulgated without colonial or military manipulation. Building on several sectionswithin the constitution, the Philippine Congress responded in 1997 by enacting theIndigenous Peoples Rights Act (IPRA).116

IPRA is another legal milestone in the global struggle to gain recognitionof indigenous and other CBPRs. IPRA provides that rights of ownership andpossession held by ICCs/IPs (aka tribal groups) to their ancestral domains shall berecognized and protected. This includes the inherent right to self-governance andself-determination, and respect for indigenous values, practices, institutions andCBPRs. Consequently, the state must guarantee the right of ICCs/IPs to freelypursue their economic, social and cultural development.

The Republic of the Philippines is likewise obliged to prevent by law anyform or coercion against ICCs/IPs. It shall also respect, recognize and protect theright of ICCs/IPs to preserve and protect their culture, traditions and institutions. Allrights recognized under the IPRA shall be considered in the formulation and applicationof national plans and policies.

The Philippine Supreme Court upheld the constitutionality of the IPRA in alandmark decision in December 2000.117 The National Commission on Indigenous Peoples(NCIP) is the government institution responsible for implementation.118 As of 2010, hugeobstacles remain in terms of legally delineating, documenting and otherwise recognizingancestral domains, primarily in terms of adequate funding and political will.

117 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. InsularGovernment,” 212 US Reports (1909) “Land occupied since time immemorial is presumed to never havebeen 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 otherlocal ancestral communities to native/aboriginal title have steadily been gainingrecognition and strength. This important development is highlighted in this paper andan array of examples and evidence has been presented.

In recent years there have been an extraordinary number of legally supportivedevelopments on international and national levels. As such, it can now be crediblyasserted that international law, including international customary law, mandates legalrecognition of native/aboriginal title. Whether policy makers, political leaders andeconomic elites respect and implement this emerging and hopeful new internationallegal norm remains to be seen.

Advocates for legal recognition, meanwhile, have reason to be hopeful. Butthere also remains much work to do. As this paper demonstrates, international law ismore supportive of the legal recognition of native/aboriginal title than ever before. Inmost locales the on-the-ground global significance of this fact has yet to be established.

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THE JUDICIAL REVIEW OF CTHE JUDICIAL REVIEW OF CTHE JUDICIAL REVIEW OF CTHE JUDICIAL REVIEW OF CTHE JUDICIAL REVIEW OF CONSTITUTIONONSTITUTIONONSTITUTIONONSTITUTIONONSTITUTIONALALALALALAMENDMENTS: THE INSURANCE THEORAMENDMENTS: THE INSURANCE THEORAMENDMENTS: THE INSURANCE THEORAMENDMENTS: THE INSURANCE THEORAMENDMENTS: THE INSURANCE THEORY INY INY INY INY IN

POSTPOSTPOSTPOSTPOST-MAR-MAR-MAR-MAR-MARCCCCCOS PHILIPPINESOS PHILIPPINESOS PHILIPPINESOS PHILIPPINESOS PHILIPPINES*

INSURANCE THEORY IN POST-MARCOS PHILIPPINES

DANTE M. GATMAYTAN**

ABSTRACT

The author argues that Ginsburg’s insurance theory is applicable in the Philippinecase, albeit with a slight twist. Instead of reflecting the interests of powerful politicians at thetime of its drafting , the post-Marcos 1987 Constitution adopted stronger judicial reviewpowers as a means of protecting democratic safeguards and strengthening judicial checks onthe Executive to reinforce horizontal accountability. The insurance system came in the form ofan empowered judiciary which was tested and proven when the Supreme Court, by exercisingits power of judicial review, provided a forum to challenge constitutional amendments intendedto benefit dominant political forces and acted as guardian of the Constitution.

* Paper presented at the 2010 Meeting of the International Political Science Association ResearchCommittee on Comparative Judicial Studies, Judicial Review as “Insurance Policy”: Horizontal andVertical Accountability in Democratic and Transitional States, Bologna, Italy, June 21-23, 2010.** Associate Professor, University of the Philippines, College of Law and Lecturer, Ateneo deManila 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,[email protected]. I am indebted to Sopfia Guira for the research assistance she provided.

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In 1986 Corazon Aquino led a peaceful revolution that ended the authoritarianregime of Ferdinand Marcos sending him to exile in Hawaii. Widely popular and at thehead of a revolutionary government, Aquino suspended the 1973 Constitution andwas free to undertake any program without constraints “from Congress, the courts, ora constitution”.1 She replaced local officials with her own appointees and abolishedthe Marcos-dominated legislature. Aquino could have acted by decree and swept asidethe 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 ofRights which would be in effect until a permanent one could be adopted.2

Then she appointed a commission to write this new constitution. The ConstitutionalCommission 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 exploitedher popularity to institute far ranging changes in government?

Aquino’s decision can be traced to a previous attempt to amend the Constitution.Marcos’ attempts at changing the constitution laid the foundations for authoritarianrule in the Philippines with the blessings of the Supreme Court. Aquino was takingsteps to ensure that the judiciary can review constitutional changes and prevent theresurgence of authoritarianism.

In this Article, I argue that judicial empowerment in the post-Marcos Philippinesis an application of Ginsburg’s insurance theory.3 While the insurance theory has beenfound inapplicable in many countries by recent studies, the Philippines may be theexemption. In the Philippines, the drafters of the constitution entrenched judicialreview as a form of political insurance to give themselves a forum to challenge legislationand proposals to amend the Constitution.

Introduction


1 R. W. Fontaine, The Philippines: After Aquino,19 ASIAN AFFAIRS 170, 172 (1992).2 C. H. Landé & 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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I argue that the adoption of stronger judicial review powers in the post-MarcosPhilippine Constitution was carried out as a means of protecting the democraticsafeguards adopted by the framers of the 1987 Constitution and strengthening judicialchecks on the Executive to reinforce horizontal accountability. The Philippine casewill show that the insurance policy extends not only to the enactment of legislationthat can have an adverse effect on the politically marginalized groups, but also toinstances where constitutional amendment can have such a harmful effect on democraticvalues. The Philippine case is important for another reason. It shows the applicationof the insurance theory, not mere conjecture, through a Supreme Court decision.

The insurance theory, in other words, was tested and proven when theSupreme Court exercised its power of judicial review over questions pertainingto constitutional amendment intended to benefit incumbents.

The idea that constitutional amendments may be unconstitutional has longpersisted in the literature. Scholars focus on the tension between an amendmentand the spirit of the constitution (as in the case of India), or the tension betweenthe amendment and other parts of the constitution (as in the case of Germany).Courts declare amendments unconstitutional even if that constitutional amendmentfulfills the amendment procedures mandated by the constitutional text—if theamendment violates the spirit of the constitution or the other provisions of theconstitution. In fact there is a growing number of scholars who argue that thereare substantive limits to the power to amend constitutions.4

The scholarly interest in unconstitutional constitutional amendments focuseson the substantive grounds upon which courts can nullify amendments. Scholarshave suggested a number of limitations on the power to amend constitutionsincluding: amendments that destroy or cripple the values of constitutionaldemocracy, or contradict natural law and justice; amendments that repeal coreconstitutional 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

Courts and Constitutional Amendments


4 See discussion in Dante Gatmaytan, Can Constitutionalism Constrain Constitutional Change?, 3NORTHWESTERN INTERDISCIPLINARY LAW REVIEW 22(2010).

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violate constitutionally protected individual rights; amendments that create exceptionsto rights included in the Bill of Rights, or those that would repeal them.5

Less examined is the relation between judicial review of constitutional amendmentand the reasons for judicial empowerment. Judicial review of constitutional amendmentsmay be intended by constitution drafters to provide a forum to challenge proposedconstitutional changes or to maintain elite hegemony in the face of democratization.

The Philippines offers an opportunity to analyze this relationship. In a spanof thirty-three years the Philippine Supreme Court addressed two attempts to amendthe Constitution. In 1973, it sanctioned the changes despite glaring lapses in proceduresin amending the Constitution. The decision allowed Ferdinand Marcos to establish hisauthoritarian regime until he was deposed in 1986. In 2006, the Court ended a similarcampaign primarily because of the failure to conform to constitutional procedures. As Iwill show here, the latter was the product of a new constitution designed to thwart a repeatof the 1973 ruling. The post-Marcos Constitution empowered the judiciary to providehorizontal 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 againin 1969. Because there was a constitutional ban on election to a third term, Marcoscalled 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 conventionto propose amendments to the Philippine Constitution. Marcos wanted the conventionto either extend his term by two more years or to change the form of governmentfrom presidential to parliamentary. If the plan had succeeded, Marcos could have runas a member of parliament in his home province and, as leader of the majority party,could have assumed the role of Prime Minister.


5 Id. at 26-27.6 Dante Gatmaytan-Magno, Changing Constitutions: Judicial Review and Redemption in the Philippines, 25UCLA 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 longas his party controlled Congress.6 Before the Convention could finish its work, Marcosplaced the country under martial law and then pushed for the adoption of the newConstitution. However, instead of following the procedures laid down in the oldConstitution, he created Citizens’ Assemblies in every barrio composed of all citizensover 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 nofree pressand no civil liberties. Marcos’ opponents and political commentators wereeither in detention or exile. These assemblies carried out the adoption of theConstitution “where armed soldiers and policemen were in prominent attendance.”7

The ratification was riddled with defects. The assemblies included minors. Noofficial ballots were used because voting was done only by a show of hands, whichviolated the principle of secrecy. The Commission on Elections did not regulate thetabulation and counting of the votes. There were even claims that these assemblieswere never convened and that the votes allegedly cast in these meetings were simplymanufactured by the people of Marcos. Marcos also had clandestine meetings withsome members of the Supreme Court even before martial law was declared and in theweeks before the 1973 Constitution was ratified.8

Suits questioning the legality of the ratification of the 1973 Constitution werefiled with the Supreme Court. They challenged the President’s power to create Citizens’Assemblies and also argued that these assemblies did not have the power to approve theproposed Constitution. It was also argued that the President did not have the power toproclaim the ratification of the proposed Constitution. Despite the irregularities attendingthe 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 theConstitution was not validly ratified, the Court also ruled that the new Constitutionwas already in force, that it had come into effect through other means.10


7 Id.8 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 declareany act unconstitutional. After six members of the Court concluded that the 1973 Constitution wasnot 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 Justicesbelieved 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 ofthe Supreme Court had removed the judiciary from a position of great institutionalsignificance in the Philippine polity by restricting its own scope and depth of decision-making.11 Long before the end of Marcos’ rule, the public respect formerly accorded theSupreme Court, as well as the Court’s reputation for independence, had dissipated. By thetime Marcos was deposed in 1986, the Court was regarded by many Filipinos as subservientto the President, and many believed that the Court had become a pliable instrument ofthe president’s will. Even the Supreme Court acknowledged “many judicial problemsspawned by extended authoritarian rule which effectively eroded judicial independence andself-respect”12 that would require time and effort to repair.13 Javellana marked the collapseof 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.

Ginsburg’s Insurance Theory

Ginsburg proffered this theory that the design of a constitution reflectsthe interests of powerful politicians at the time of its drafting. In his view, politicianswho foresee themselves in power after the adoption of a constitution are likely todesign 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 votes—only two of the seven necessary—saying that the Constitution was notin 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 Court’s decision was designed to preserve its ownexistence: [T]he biggest beneficiary of the Court’s decision was the Court itself. For while sparing thePresident 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 uncompromisingposture taken by Chief Justice Roberto Concepcion and Justice Calixto Zaldivar against the Presidenton all five major issues raised in the cases, and the majority vote against the President on the issue ofthe valid ratification of the new Constitution gave the country’s constitutionalists reasons to applaudand keep faith in the Court—or at least in some of its members.

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because dominant parties are likely to anticipate continued success in postconstitutional elections and, therefore, to prefer majoritarian institutions. If they arelikely to lose elections after the constitution is adopted, they seek to entrench judicialreview as a form of political insurance—to give themselves a forum in which tochallenge the legislature. Judicial review provides a forum of insurance to prospectiveelectoral losers during the constitutional bargain. “The key factor in explaining variationin the extent of judicial review in constitutional design is the structure of the partysystem and the configuration of political forces at the time of constitutional drafting.”14

Ginsburg offers an alternative to Ran Hirschl’s15 hegemonic preservation thesiswhich suggests that legal reforms are only ever allowed by politicians and their allies inthe judiciary. In Hirschl’s words:

…legal innovators, that is, politicians, representing cultural and economic elites, incooperation with the legal elite, determine the timing, extent, and nature ofconstitutional reforms. Legal innovations are, in other words, products of theinterplay between hegemonic elites (and their political representatives) and the legalprofession. Political actors representing hegemonic social and economic forcesusually attempt to shape the legal system to suit their interests. To do soeffectively in rule-of-law societies, they must secure the cooperation of the legalelite to whom the political elite often have close social ties. The changes that emergereflect a combination of political and economic preferences and professionalinterests. To be sure, demands for constitutional change often emanate from variousgroups within the body politic, but if hegemonic political and economic elites,their parliamentary representatives, and the legal elite do not forecast gain from aproposed change, the change is likely to be blocked.16

More recently, he says that “politicians are more likely to divert policy-making responsibility to a relatively supportive judiciary when present orprospective transformations in the political system seem to threaten their ownpolitical status and policy preferences.”17 To preserve their hegemony, the


14 TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES (2003).15 R. Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from FourConstitutional 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 ofMexico. In both cases, Finkel argues that parties in power are likely to introduce judicial reformswhen the probability of its reelection declines.

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“influential sociopolitical groups” may support the establishment of judicial reviewand the empowerment of constitutional courts.

There are variations of theories that orbit the notion that political reasons propthe constitutionalization of judicial empowerment. Hirschl summarizes these theories:

In relatively open political settings, judicial empowerment may reflect thecompetitiveness of a polity’s electoral market or governing politicians’ timehorizons. According to the “party alternation” model, for example, when aruling party expects to win elections repeatedly, the likelihood of anindependent and powerful judiciary is low. When a ruling party has a lowexpectation of remaining in power, it is more likely to support a powerfuljudiciary to ensure that the next ruling party cannot use the judiciary to achieveits policy goals. Scholars draw on this “insurance” logic to explain the variancein judicial power between Japan and the United States; between different periodsin the late nineteenth-century United States; between three post-authoritarianAsian countries (South Korea, Mongolia, and Taiwan); between several politiesin Eastern Europe and between new democracies in Southern Europe (Spainand Portugal); and between two Argentine provinces.18

Many recent studies test Ginsburg’s theory but the results weigh heavily against it.These new studies show that judicial empowerment is motivated by factors other than theuncertain outcomes of political contests. A study of the experience of Latin Americashowed that multilateral constitution-making processes tend to establish institutionalframeworks consistent with constitutionalism; independent and powerful judicial institutionsare more likely to be created under these circumstances.19


18 Id. at 1351-1352.19 J. Ríos-Figueroa & A. Pozas-Loyo, Enacting Constitutionalism: The Origins of Independent JudicialInstitutions in Latin America, 43 COMPARATIVE POLITICS 293(2010).

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In the case of Brazil, in particular, evidence suggests that an independentjudiciary may actually serve governmental interests. Incumbents can rely on courts tofacilitate pursuit of policies “when structural characteristics of the political system createbarriers for policy implementation.”20 Stated otherwise, judicial empowerment is oftendesigned to improve the incumbents’ ability to implement their policy choices. The expansionof judicial authority depends not on the potential results of electoral contests but onwhether electoral winners can extract benefits from independent courts.21

Hilbink22showed that it is not necessarily weak, pessimistic, or insecurepolitical actors that seek to introduce or strengthen judicial review. Relatively secureor politically ascendant institutional designers may find good reasons to enhancejudicial power. In his study of Spain and Chile, he showed that strong actorsopted for the establishment of constitutional courts and the expansion of thejudicial role when they wrote new constitutions in the late 1970s. They initiatedjudicial empowerment to build a regime that rejected a strong Executive and providethe basis of a united democratic front against the military.

At the height of their power, authoritarian leaders in Chile enhanced judicialpower at many levels. Such judicial empowerment was logical and attractive to themnot only because of Chile’s long tradition of adherence to legal forms, but also becauseof their understanding of adjudication as a technical or “apolitical” function, whichrendered empowered courts integral to their mission of re-founding the Chilean politicalsystem on more rational and unitary grounds.23

Judicial empowerment in Peru was not fueled by political uncertainty orpotential 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 checkon executive and legislative power after the Second World War. It is also explained


20 R. M. Nunes, Politics without Insurance: Democratic Competition and Judicial Reform in Brazil, 42COMPARATIVE POLITICS 313, 313(2010).21 Id. at 328.22 L. Hilbink, The Constituted Nature of Constituents’ Interests: Historical and Ideational Factors in JudicialEmpowerment,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 “reasonableinstitutional design” which included rules for the appointment of justices and fordeclaring laws unconstitutional.24

A study of judicial reforms in Mexico concluded that it was neither electoraluncertainty nor imminent electoral defeat that prompted judicial reform in the mid-1990s. The governing Partido Revolucionario Institucional (PRI) faced a political defeatafter the reform in the year 2000. Judicial reform, however, was passed and implementedalmost simultaneously and shortly after President Ernesto Zedillo’s inauguration andnot toward the end of his administration. It seemed that in Mexico, these reforms werecarried out to pursue “political legitimacy” and was launched as a short-term attempt tosecure votes. The project was developed while Ernesto Zedillo was campaigning for thepresidency in a climate that called for improvements to the justice system. The PRI neededto send a message of change in the 1994 elections when it faced the possibility of losing afederal election for the first time in more than seventy years. Rather than securing itsinterests in the future, “the reformers were trying to recover their legitimacy and theviability of their government by adapting to a democratizing context.”25


24 E. Dargent, Determinants of Judicial Independence: Lessons from Three ‘Cases’ of Constitutional Courts inPeru (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?, 62POLITICAL RESEARCH QUARTERLY 753, 762(2009). Oseguera argues that the insurance policy argumentfails to provide an explanation as to the domestic dynamics motivating reformers. She says that theinsurance theory attributes the power to calculate political fortunes to political elites. Studying casesin which the researcher already knows that the reformers lost political control after reform does notmean they could foretell their fate. She also asserts that by focusing only on the present and futurecomposition of elected branches, analysts may overlook other possible context-based and reform-content interests of reformers. She claims too that trying to provide a single explanation for themotivations behind all parts of judicial reforms and all of an actor’s significant decisions in theprocess may lead to limited accounts.

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One study concluded that Turkey’s Constitutional Court serves as anadministrative attaché of state elites in overseeing the political arena and transformingthe society. As administrative agents, the ruling elite turn to courts not to safeguardtheir immediate interests, but to transform the society by extending the reach of thestate. Shambayati and Kirdis26 argue that the post-1982 Turkish Constitutional Courtshould be conceptualized as an administrative agent assisting the military insimultaneously regulating the political society and transforming the nation. The militaryregime took direct control of the constitution-making process in the 1980s andappointed a small constituent assembly that excluded anyone with links to politicalparties or other organized groups. The membership in the Assembly was limited tomilitary officers, law professors, and high-level bureaucrats appointed by the junta.The junta reserved the right to override the Assembly. The drafters of the constitutionwere guided by three principles. The 1982 Constitution assumes that the fundamentalpurpose of the state is thetransformation of the society. The original preamble statedthat the constitution was prepared with the goal of “ensuring that [the Republic ofTurkey] attains the standards of contemporary civilizations, as a full and honorablemember of the world family of nations.” The assembly also set out to ensure that theState would not be controlled by private associations, and to ensure the dominance ofthe state over political institutions.27

Again, my view is that judicial empowerment in post-Marcos Philippinestweaks the “insurance theory” slightly. I suggest that in the euphoria that envelopedthe removal of Marcos from power, the framers of the 1987 Constitution promotedjudicial empowerment to create a strong check on the executive branch. Theframers were concerned about a possible reprise of Marcos-era politics andestablished more formidable obstacles in the form of stronger provisions on judicialreview and constitutional amendment.

As the Philippine case will show, judicial review is available not only for thereview of ordinary legislation. It can be invoked when constitutional amendments arechallenged, particularly when amendments threaten to undermine democratic values


26 H. Shambayati& E. Kirdis, In Pursuit of “Contemporary Civilization”: Judicial Empowerment in Turkey, 62POLITICAL 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 reviewinto the fundamental law to thwart future attempts at constitutional change and toensure horizontal accountability.

Both Ginsburg’s and Hirschl’s views cast doubt on the effectiveness of judicialreview as a mechanism for horizontal accountability. Theoretically, under a liberal democracywith a system of separation of powers, the judicial branch functions as an effective,independent barrier against abuses of executive or legislative authority. The judiciary insuresthat the other branches exercise their authority within the law and protects the rights ofcitizens against the arbitrary exercise of power.28 Horizontal accountability is possible withthe existence of state agencies that are legally empowered—and actually willing and able totake actions ranging from routine oversight to criminal sanctions or impeachment in relationto 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 Hirschlsuggest, judicial review becomes ineffective as a horizontal check on political institutions.The Philippine case, however, will show that judicial empowerment in fact strengthenedhorizontal accountability.


28 M. Dodson & D. Jackson, Horizontal Accountability in Transitional Democracies: The Human RightsOmbudsman in El Salvador and Guatemala, 46 LATIN AMERICAN POLITICS & SOCIETY 1(2004).29 G. O’Donnell, 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 thatwas intended to provide him with a new mandate to helm the Philippines. Hisopponent in that election, Corazon Aquino assumed the presidency. Aquinoannounced that her government was a revolutionary government, and that shewas taking power in the name of the people. She abolished the National Legislatureand replaced most of the members of the Supreme Court.The reorganized SupremeCourt recognized the Aquino government as de jure, later referring to Aquino’sgovernment as a “revolutionary government.”30

Aquino had unparalleled support among the people. Still she had to translate thepeoples’ hopes and aspirations into the various articles of the Constitution to show thatshe was not assuming a dictatorial mode.31Aquino appointed a fifty-person commission towrite a new constitution. Aquino’s closest advisers selected its members—mostly lawyersclose to the presidential camp. The Commission included two of the leaders of Aquino’scampaign team, four members close to the President’s family, while ten were members ofthe 1971 Constitutional Convention (four places were reserved for Marcos’s New SocietyMovement and one for the pro-Marcos sect, the Iglesia ni Cristo). The final mix of formermembers of Congress, Supreme Court justices, representatives of the Catholic Churchand the business community, guaranteed that the Commission would produce documentthat adhered closely to the pre-martial law institutional framework.32


30 Dante Gatmaytan, It’s 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 ofdubious adoption. The decision also had practical consequences for her new administration. If Aquinoretained the 1973 constitution, all officials elected or appointed under its provisions would have beenentitled to keep their offices. These would include members of Marcos’ KBL party that enjoyed amajority in the National Assembly who could have stood in the way of any legislative program Aquinoplanned. Among the appointed officials were judges with tenure who could have blocked theconfiscation of the ill-gotten wealth of Marcos and his cronies and who could have protected theMarcos’ subordinates accused of committing crimes. She would also have to respect the tenure of localofficials from the KBL party who could have impeded her government’s efforts to establish its ruleoutside the metropolitan area. See Landé, 64 FOREIGN AFFAIRS 1087.31 S. Maisrikrod, Changing Forms of Democracy in Asia? Some Observations on the Thai and PhilippineConstitutions,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 power—civil-society actors working beside the familiar members of traditional political society. Nearlyhalf of its members reported having participated in mass actions in areas such as landreform, ethnic conflicts, and gender issues. Now charged with the drafting of a newconstitution, the commission was eager to prevent “another Marcos.” Their reformsincluded term limits and constraints on presidential power to make it more difficult todeclare martial law.33 The Constitutional Commission convened on June 2, 1986 withmembers from various fields and possessing divergent ideological beliefs. In a matterof months it held public hearings, regional consultations, and spent two months onfloor debates. The commission finished a draft by October 15 and the plebiscite forthe constitution’s ratification was later held in February 1987.34

In the course of its work, the Constitutional Commission displayed adetermination to prevent another Javellana—the Supreme Court decision that sanctionedMarcos’ constitutional change. The members of the commission devised a remedythat would prevent the executive from invoking the political question doctrine in caseswhere its actions are questioned. The innovation came in the form of a new provisionthat strengthened the judicial review:

Judicial power includes the duty of courts of justice to settle actual controversiesinvolving rights which are legally demandable and enforceable and to determinewhether or not there has been a grave abuse of discretion amounting to lackor excess of jurisdiction on the part or instrumentality of the government.

Former Chief Justice Roberto Concepcion, a member of the ConstitutionalCommission that drafted the constitution, explained that the change was a directresponse to the judiciary’s experience under the martial law. It is meant to preventcourts 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.


33 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 regularlyclaim that the campaign for the ratification centered more on President Aquino’s popularity than onthe merits of the draft charter. See Hernandez, 1988.

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Concepcion mentioned Javellana specifically during the ConstitutionalCommission debates. When suits were filed to declare the presidential proclamationdeclaring that the 1973 Constitution was null and void, the main defense put up by thegovernment was that the issue was a political question and that the court had nojurisdiction to entertain the case.

After perusing the Records of the Constitutional Commission, the post-Marcos Supreme Court concluded that judicial power is not only a power but aduty “which cannot be abdicated by the mere specter of this creature called thepolitical question doctrine.” The 1987 Constitution now fortifies the authority ofthe courts to determine in an appropriate action the validity of the acts of thepolitical departments.35

Applying the New Constitution

Gloria Macapagal-Arroyo became President of the Philippines in 2001 afterJoseph Estrada was ousted from office by another popular uprising. Her administration,however, was also burdened with charges of corruption that she nearly became thethird President to be ousted by massive demonstrations. Like Marcos before her,Arroyo attempted to amend the Constitution to change the form of government to aparliamentary government. Without the cooperation of the Senate, however, Arroyocould only change the constitution through an initiative.

Local officials gathered signatures to amend the Constitution and filed a petitionwith the Commission on Elections (COMELEC) to schedule a date to allow voters tovote 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 InSantiago a majority of the Supreme Court concluded that while the Constitutionrecognized the right to directly amend the Constitution, the people cannot exercisethe right if Congress does not provide for its implementation. The Courtpermanently enjoined the Commission on Elections from “entertaining or taking

35Santiago v. Guingona, Jr., G.R. No. 134577, 298 S.C.R.A.756(1998)36 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 untila sufficient law shall have been validly enacted to provide for the implementationof the system.” The case was then elevated to the Supreme Court.37

The proponents of constitutional change were facing an uphill climb. Theywere seeking not amendments to, but a revision of the Constitution. And underthe constitution, the initiative process is available only for amendments to, and notrevisions of the Constitution.

One other problem faced by proponents of constitutional change was the factthat the campaign to amend the Constitution was spearheaded by the government andnot the people themselves. It was President Arroyo herself who asked Congress torevise the Constitution during her State of the Nation Address in 2005. Localgovernments were mobilized to gather signatures for the campaign. The Speaker ofthe House had been vocal about his support for a shift to a parliamentary form ofgovernment. The Solicitor General entered his appearance in support of the petitionand against the COMELEC. The Government was funding the campaign to amendthe Constitution. Except for the Senate, the entire government machinery seemed tohave 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 dividedopinion at 8-7. The majority decision said that “The Lambino Group miserably failed tocomply with the basic requirements of the Constitution for conducting a people’s initiative.”39

This “glaring failure” to comply with the Constitution’s 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 theConstitution on initiative and that the proposed constitutional amendment should beready and shown to the people before they signed any proposal. Thus, an amendment

37 Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNAL at 8-9.38 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 thepeople 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 proposalconstituted a revision of the Constitution and not a mere amendment. The Courtexplained that the framers of the Constitution intended and wrote a clear distinctionbetween “amendment” and “revision” of the Constitution and a people’s initiativemay propose only amendments to the Constitution—but not revisions.42

The majority opinion ended with an explanation of its role:

The Constitution, as the fundamental law of the land, deserves the utmostrespect and obedience of all the citizens of this nation. No one cantrivialize the Constitution by cavalierly amending or revising it in blatantviolation of the clearly specified modes of amendment and revision laiddown in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution inunchartered waters, to be tossed and turned by every dominant political groupof the day. If this Court allows today a cavalier change in the Constitutionoutside the constitutionally prescribed modes, tomorrow the new dominantpolitical group that comes will demand its own set of changes in the samecavalier and unconstitutional fashion. A revolving-door constitution does notaugur well for the rule of law in this country.43

The Court said that no amount of signatures “can change our Constitutioncontrary to the specific modes that the people, in their sovereign capacity, prescribedwhen they ratified the Constitution.” The allusions to the “people’s voice” or the “people’ssovereign will,” said the Court, could not override the specific modes of changing theConstitution as prescribed in the Constitution itself. The Court then concluded by saying:

This Court cannot betray its primordial duty to defend and protect theConstitution. The Constitution, which embodies the people’s sovereignwill, is the bible of this Court. This Court exists to defend and protect theConstitution. To allow this constitutionally infirm initiative, propelled by

41 G.R. No. 174153, 505 S.C.R.A. 160, 229 (2006).42 Id. at 249.43 Id. at 263-264.


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deceptively gathered signatures, to alter basic principles inthe Constitution is to allow a desecration of the Constitution.44

The Supreme Court managed to avoid a repeat of Javellana, and two Justicesmentioned the case in their opinions. Chief Justice Panganiban, in his separateconcurring opinion, again demonstrated his sense of history and his determinationnot to repeat the errors of his predecessors:

Verily, the Supreme Court is now on the crossroads of history. By itsdecision, the Court and each of its members shall be judged by posterity.Ten years, fifty years, a hundred years—or even a thousand years—fromnow, what the Court did here, and how each justice opined and voted, willstill be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott, and the loathingof Javellana still linger and haunt to this day. Let not this case fall intothe same damnation.45

Associate Justice Sandoval-Gutierrez’s closing was more to the point:

Let us not repeat the mistake committed by this Court in Javellana v. The ExecutiveSecretary. . . . That was during martial law when perhaps majority of the justiceswere scared of the dictator. Luckily at present, we are not under a martial lawregime. There is, therefore, no reason why this Court should allow itself tobe used as a legitimizing authority by the so-called people’s initiative for thosewho want to perpetuate themselves in power.46

She added that “history will judge us on how we resolve this issue—shallwe allow the revision of our Constitution, of which we are duty bound to guardand revere, on the basis of a doubtful people’s initiative?”47

Both Justices seem to have seen the initiative as a scheme developed by politiciansto salvage the Arroyo administration. This time there were enough votes from themembers of the Supreme Court to declare the drive to amend the Constitution illegal.48

44 Id. at 26545 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

Ginsburg’s theory posited that framers of constitutions who are not likely towin elections after the adoption of the constitution are inclined to write judicial reviewinto constitutions to provide a forum where they can protect their interests shouldfuture elections deny them control of the government.

Ginsburg’s theory can be applied to the Philippine case, with a slight twist. Aspointed out earlier, the composition of the constitutional commission that draftedwhat is now the 1987 Constitution was not based on political affiliations. Many ofthose in the commission were part of the anti-Marcos movement, having taken part inprotests against the Marcos regime. They were civil society actors and political alliesdetermined to prevent a return of authoritarianism in the Philippines. They were partlyresponsible for sweeping Aquino into office and were clearly in power. Aquino claimedthat her government was revolutionary.49 She could have carried out massive reformsin government and ruled by decree. Instead she opted to bring political stability to thecountry by adopting a constitution. Why did the framers take pains to strengthen thejudiciary’s powers in the Constitution? Why would the framers create a check on arevolutionary government that was not constrained by any rules?

The composition of the Constitutional Commission dictated the interests thatthe constitution would protect. Having been part of the movement that ousted Marcosfrom office, the commissioners were not thinking along party lines. They were notthinking about the next elections or their chances of winning. Being mainly stakeholdersfrom outside government, they had no illusions about obtaining power. They envisioneda future where their role would be largely outside official power and worked to ensurethat 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 theirown interests. This would explain the constraints on executive power as well as theprovisions reinvigorating the judiciary.

49 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 theprocedures of the Constitution on constitutional change to prevent “dominantpolitical forces” from changing the Constitution according to their whims. This isprecisely why the drafters of the 1987 Constitution wanted to provide the Courtwith more powers. The issues raised in Lambino could no longer be called “politicalquestions” and the Court had no choice but to examine the attempt to amend theConstitution. Simply put, the constitutional changes worked the way they weresupposed to—it provided a forum for those who did not wield political power tochallenge government action. The Court, now equipped with broader powers ofjudicial review, halted the illegal attempts at constitutional change.

In short, the framers of the 1987 Constitution were concerned with protectingdemocratic gains and used judicial review to strengthen the judiciary to ensurehorizontal accountability.

We recall that Ginsburg’s theory predicted that if framers of the constitutionforesee themselves in power after the constitution is passed, they are likely to designinstitutions that will allow them to govern without encumbrance. If they foresee themselveslosing power, they may entrench judicial review as a form of political insurance.

These conditions did not materialize in the Philippines. The drafters were notpursuing political power and did not intend to govern after the adoption of the Constitution.

Furthermore, the entire constitutional project and the inclusion of strongjudicial review provisions in particular was intended to preserve the democratic idealsand prevent restoration of authoritarianism. Corazon Aquino had a simplistic platformof government when she challenged Ferdinand Marcos for the Presidency of thePhilippines: dismantle the dictatorship and restore democracy. It was this ideathat permeated the work of the Constitutional Commission that drafted the 1987Constitution of the Philippines.

The result was not only to create a forum were future legislation can bechallenged by weaker political parties. It created a forum to challenge attemptsto amend the Constitution. This forum, based on the Supreme Court’s ruling inLambino, is not presided over by a neutral arbiter, but a Court that has beenconscripted into the service of protecting the constitution.


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Conclusion

Ginsburg’s insurance theory finds application in the Philippines. The post-Marcos government drafted a new constitution that empowered the judiciary toguard against future constitutional changes. The drafters of the Constitutionwere not politicians concerned with maintaining power. They were less concernedabout winning future elections but more about preventing a return to authoritarianpolitics. When the Arroyo government attempted to change the form of governmentinto a parliamentary system in 2006, the Supreme Court ended the campaign andemphasized its own role as the guardian of the Constitution. The drafters of the1987 Constitution had established not only a forum to challenge constitutional change,but a Supreme Court charged with protecting the Constitution. The insurance systemthat came in the form of an empowered judiciary had served its purpose—thwartinga reprise of a strategy to retain political power by the dominant political forces.


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ABOUT THE JOURABOUT THE JOURABOUT THE JOURABOUT THE JOURABOUT THE JOURNNNNNALALALALAL

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

Contributions and inquiries may be sent to [email protected] should be submitted in Microsoft Word or Rich Text format, typedsingle-space in 13-point Times New Roman font.

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Inquiries may also be coursed through the Institute of Government and LawReform at Room 106, Bocobo Hall, UP Law Complex, or you may call 920-5514local 202-203.

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