The Judicial Review of Constitutional Amendments

8/11/2019 The Judicial Review of Constitutional Amendments

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NALPPPEWI IPLHI AND OS REWCYVET III

VO ULMN1OE.O COT 2B0E1 R1


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PHILIPPINE LAW AND SOCIETY REVIEW VOL. 1 NO. 1

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EDITORIAL BOARD

Editor inChief

Professor Florin T. Hilba y UP College of Law

Board of Editors

President Francisco Nemenzo, University of the Philippines

Dean Pacifico A. Agabin, UP College of La w

Dean Raul C. Pangalangan, UP College of La w

Dean Emmanuel De Dios, UP School of Economics

Dr. Sylvia Estrada Claudio, UP Center for Women s Studies

Dean Antonio G.M. La Via, Ateneo School of Go vernment


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note rom the editor

Law as a social phenomenon is a discourse of impressive structures it breeds lifeand doctrine, meaning and language, thought and authority. It speaks with many

voices: power, freedom, dignity, ethics, rights, justice. The noise generated by the various discourses of law create an intellectual landscape that can be mined for 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 Magallonas 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 nations policies and ultimately, thederogation of our right to self-determination and independence in international law.


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note rom the editor

Owen Lynch s Mandating Recognitionestablishes 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


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CONTENTS

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

Mandating Legal Recognition: International Law and Native/Aboriginal Title...................................................31

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


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IMPACT OF INTERNATIONAL LEGAL RELATIONS 6

T HESES ON THE IMPACT OF INTERNATIONAL

LEGAL RELATIONS ON THE CONSTITUTIONAL

SYSTEM

MERLIN M. MAGALLONA *

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 arising

from 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 as

decision-making processes governing the relation of international organizations and their membeStates. It examines the legal relations of the Philippines with the International Monetar y 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.

* PROFESSORIAL LECTURER , FORMER DEAN AND PROFESSOR OF L AW , UNIVERSITY OF THE PHILIPPINES ,


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COLLEGE OF L AW .


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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 nonoftheir 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, Article II of the Constitution, as follows:

The Philippines. . .adopts the generally accepted principles of internationallaw 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 isone of the generally acceptedprinciples 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 generallyaccepted principles 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 to

comply with these principles in relation with other states.

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

1 182 SCRA 644, 653 (1990).


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In the international plane, USA vs. Guintomay 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 mechanism

by 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 mythicalautomatic 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 individualnatural persons and juridicalentities. This strikes a difference from their status in the international legal order in

which 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 Section 21, Article VII of the Constitution, thus:

No treaty or international agreementshall be valid andeffectiveunlessconcurred 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. Blayblock Transportation 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 concludedbetween States in written form and governed by international law, whether embodied in a singleinstrument or in two or more related instruments and whatever its particular designation.3

This usage in the international plane is to be read in close correlation withparagraph 2 of the same Article with respect to treaty in the national sphere, which provides:

The provisions of paragraph 1 regarding the use of the terms in the 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 treaty

governing 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 asdomestic 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

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

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IMPACT OF INTERNATIONAL LEGAL RELA-


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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 trea ty over the Consti tu tion in theinternational plane, the Constitution embodies the principle that in the nationalsphere there are no nor ms 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 the

law or the Rules of Court may provide, final judgments and orders of thelower courts in:

(a) All cases in which theconstitutionalityor validity of any treaty, international

7 See Agustin vs. Edu, 88 SCRA 195 (1979). 8 SeeMarcos 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. Hechanova 10 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 Gonzalesinvolves 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 the

reasoning 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 Elections 12 departs from Gonzales. Abbas affirms:

Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land.But as internal law it would not be superior to R.A. No. 6734, an enactment of 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, beinga subsequent la w.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 Gonzalesthesis of the

Act of Congress nullifying the treaty. While Abbas limits itself to the amendatory orrepealing effect, Gonzalesgoes on to the extreme of nullification; the practical effectmay hold little difference in both cases from the viewpoint of the international plane

in regard to the possible result in terms of state responsibility: a sharper 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 actionin compliance with theobligation of the Philippinesunder that treaty, leading the other States Parties to consider the Philippines as havingcommitted an internationally wrongful act. Beingan organ of the State, the Courts 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, 6 th ed., 2004, pp. 372-385.

The Draft Articles reflect customary law. 15 SeeILC Draft Article 2. 16 SeeILC 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 f or mula in Ichong vs.Her nandez that the treaty is always subject toqualification or amendment by law18 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. Lantion 19 to the effect

that a treaty may repeal a statute and a statute may repeal a treaty.

Confusion in relatinginternational 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 bound by 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 Philippines is 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 our government, Constitution and laws will carry out our international obligations.Hence, we cannot readily plead theConstitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities underinternational la w.21

17 SeeILC Draft Articles 1, 2 and 4. 18 101 Phil. 1156, 1191 (1957). 19 322 SCRA 160, 197 (2000). 20 Bayan vs. ExecutiveSecretary,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 con ventions in particular, the la w in the international plane is in complementarity

with 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 as

national 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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17 IMPACT OF INTERNATIONAL LEGAL RELATIONS

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 Sincethat 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 toestablish closecooperation with the World Bank, whichhas been systematizedin practice.26 On its part, the World Bank has interpreted its Articles of Agreement 27 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 the

WTO 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-coordinatedoperations will acceleratethe globalization trendstowards the totalizing integration of the developing countries.

28 NEWS ASIA, 11 December 1996, at 1. 29 SeeChristoph Schreuer, The Significance of International Organizations in Current International Law , 38 Law and State 63, 64 (1988).


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18 IMPACT OF INTERNATIONAL LEGAL RELATIONS

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 in Article 38(1) of the Statute of the International Cour t 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 f orms 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 aslegal 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 SeeR OSALYN HIGGINS , PROBLEMS AND PROCESS. INTERNATIONAL L AW AND HOW W E USE I T 1-16 (1994); Policy Considerations and The International Judicial Process , 17 Intl and Comp. L. Q. 58, 59 (1966). 31 A.J.P. Tammes, Decisions of International Organs as a Source of Law , 94 Recueil des Cours261, 269 (1988-II).


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States composing it.

b. By the same agreement the principal organs of the international or g anizationare created, the decisionsof 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 agreements with 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 decisionsof 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 integ ral part of the WTO dispute settlementprocedure that if the la ws and regulations of a member are determined to be in contravention

32 Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement 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--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 specific

affirmative 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 IMF

Articles 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 IMFs Articles of Agreement empowers it to o versee 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 withthe infor mation necessary for such sur veillance, 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 the

Asian Development Bank, the World Bank is the main source of development funds, which the Philippines by its own internal sources is incapable of generating. This 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 States independence under international law is derogated by the conceptof development made by the decision-making processesof 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 predicamentas wellin the relationsof developing countries withthe supranational authorities when he said: The IMF has an ideologyof politicaland 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 those

brought about by the independent initiative of the Congress or the Executive

35 John Darnton, In Poor, Decolonized Africa, Bankers Are New Overlords,N.Y. T IMES, 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 contextof economic and political transformation in thenationalcommunity that some controversies of significance have reached the Supreme Court.Notably, these are Taada vs. Angara 36 as regards the ratification of the WTO Agreement;

Manila Prince Hotel Corporation vs. Government Service Insurance System 37 with respect to thegovernment privatization policy; and Tatad vs. Secretary 38 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 regulationand 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--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 IMFs hold pending the enactment of a new deregulation law.43 When Congress passedthe revised deregulationlaw in Republic ActNo. 8479, the executive department expresseddissatisfaction because the new law failed to comply with the IMFs 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 are

working hard to have it done in a manner that will be acceptable to the IMF. 45

The case of the Oil Deregulation Law is not an isolated one. The 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 andfinancialinstitutions, 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. S TAR , 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 per vasive 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 comprehensivenature of policyprescriptions 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 the

World Bank. The implementation of the conditionalities in MEFP is supervised by

the IMF, which conducts a periodic review of government performance.48

On the 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 ofcongressionalpower. In fact, as already illustrated, their policy initiatives are funneled

into 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 Senateconcurrence? 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 SeeHugo 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 Cours297, 316 (1959-III). 51 As quoted by Broches, supra49, at 344. SeeHan, supra48, 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 establishedpractice 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 legalnature of the [World] Bank s loan and guaranteeagreements

with itsmembers, I shall be concerned primarily toconsider by what rules of lawthese agreementsare governed. Myconclusion will be that theyare internationalagreements governedbyinternational law.50

The Loan Regulations of the World Bank provides:

The rights and obligations of the Bank and the Borrower under the Loan Agreement shall be valid and enforceable with their terms notwithstandingthe law of any state, political subdivision thereof, to the contrar y.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 of international 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 and

the World Bank. The Philippines is contractually bound by the requirement that theseloan and guarantee agreements are governed by international law.

52 Broches, op. cit ., supra49, 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 Article 102 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 guaranteeag reement under the coercive pressureof 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, legislativepower 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 w hat the plenary pow er of Cong ress may ha ve 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 tr uth, transfor mation does not merely achieve the

internalization of treaty norms as ready-made rules for the settlement of disputes.Over and above that function, it has given constitutional legitimacy to the 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 a voided with treaty-basedlaws. 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 signatureMay 23, 1969, 1155 U.N.T.S. 331. 55 SeeCONST . 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 the very exercise of congressional powers under the Constitution. 56

Revamping the Philippine Nation-State

The conditionalities and prescriptions described above may be summed up 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 theinternationalizationof the production processes, for example, through globalsubcontracting.

2. Privatization of public industrial and financial assets andinstitution, 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 mark et; 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--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 out

the 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.

Significantis 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 a welfare 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 energ y, 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 interg enerationa l 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 constitutionalconventionas its likely f orum will become an ideological battleground as to the concept of the PhilippineNation-State that will prevail, aconfrontation 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 31

MANDATING RECOGNITION:International

Law and Native/ABORIGINALTITLE

OWEN J. L YNCH *

ABSTRACT**

This paper identifies, summarizes and analyzes leading international and nationallaws and judicial cases recogniz ing or otherwise supportive of native/aboriginal title. Native/aboriginal titles are community-based property rights typically held by indigenous peoples ansome other original, long-term-occupant local communities. The paper evinces widespread an

growing evidence that international law is moving towards (and arguably already is) mandatinglegal recognition of native/aboriginal title to indigenouster ritories 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 counter parts),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 customar y)laws that are likewise supportive of legal recognition.

The paper is not intended to be exhaustive; nor is it completely up to date. Rather,it establishes that the trend in international law as conventionally understood, as well as

customar y inter national law, as evinced in the domestic law of a growing number of nation-states is towards mandating the legal recognition of native/aboriginal title.

* FELLOW , R IGHTS AND R ESOURCES INITIATIVE ; V ISITING PROFESSOR , COLLEGE OF L AW , 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 Law 1

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 profoundly

destructive of human well-being and our natural environment. The conflicts too often revolve around issues concerning property rights,

especially those of indigenous peoples and other local communities who live in 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 politically

relevant, i.e., aprocess 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 basicelements: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 primitiv eis inappropriate and arrogant in the context of 2010. Over a half-centuryago Hoebel was using languagethat other social scientistsof the time were also using widely. It merits note that Hoebel s writingsreflectedfascination and admiration for non-dominant indigenous peoples and cultures.

Conventional international lawyers would no doubt argue in favor of a more structured and hierarchical understanding of international law. They tend to categorize international laws as being hardor 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, especiallylegalrecognition of native/aboriginal title. It relies on emergingunderstandings of international law that are more inclusive and encompassing. These approaches areincreasinglyfreed from historic but now often dated post-WWII state-centric theoretical constrictions.Seecomments 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 internationaldisparitiesin 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, policyscientists, 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 approach 2 that jointly addresseshuman rights, environmental and economic concerns, and enduring international economiccrises, the prevailing and often single minded pursuit of economic growth and individualpri v ate property rights still dominates, overwhelmingly. This pursuit is premised on theoretical

and 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 in

international 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 the

World Bank no less concluded that the amount of forest cover and biodiversity withinindigenous territories is higher than expected, and much higher than within strict

protected 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 SeeUnitedNations Declaration on the Rightsof 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 alsoGeneral

Assembly Adopts Declaration on Rights of Indigenous Peoples , Sep. 13, 2007, http://www.un.org/News/Press/docs//2007/ ga10612.doc.htm (last accessed Oct. 30, 2011); http://www.iwgia.org/sw248.asp; 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/ p ublication_details.php?publicationID=1373 (on file with the Author).Included in the assessment was proof, using satellite imagery, that biodiversity conservation is higher

within indigenous peoples territories than outside, two times higher than expected. See also The Wealth 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.WhoConservesthe World s
http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdfhttp://www.un.org/News/Press/http://www.iwgia.org/sw248.asp%3Bhttp://www.iwgia.org/sw248.asp%3Bhttp://www.rightsandresources.org/http://www.rightsandresources.org/http://www.wri.org/publication/world-resources-2005-wealth-poor-managing-ecosystems-http://www.wri.org/publication/world-resources-2005-wealth-poor-managing-ecosystems-http://www.rightsandresources.org/http://www.rightsandresources.org/http://www.iwgia.org/sw248.asp%3Bhttp://www.un.org/News/Press/http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdfhttp://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf


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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--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 imperiumand dominium .8

Forests? Community-Driven Strategies to Protect Forests and RespectRights , Washington, DC, Rights and ResourcesInitiative (2004); Ed Ayres, Mapping Diversity: Mapping the Nature of Diversity: A Landmark ProjectReveals a RemarkableCorrespondence 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 imperiumand dominiumto 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.
http://www.worldwatch.org/node/533http://www.worldwatch.org/node/533http://www.worldwatch.org/node/533http://www.worldwatch.org/node/533http://www.worldwatch.org/node/533


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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 indigenousand some other local communities comprisedof 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 evolved with shifts in the ordering of politicalpower and burgeoning of international institutionsthat constitute themselves on precepts of a peaceful and just world order. 10 Prof.

James Anaya, the UN SpecialRapporteur 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 and

experience over three decades working on legal aspects of land and other property rights issues concerningruralpeople, 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 VillageandSaramakabelow) and Cebuano vegetablefarmers 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. TheseCebuano 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 ostensiblysquatters. Some farm the same land as their great-greatgrandparents, 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 tooverlook their povertyand legaldisenfranchisement. 10 S.J. ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 49 (2d ed. 2004). 11 The title SpecialRapporteur is accorded to individuals who have a specific mandate, typicallyfor three years,from the UN Human Rights Council to investigate, monitor and recommend ways to ameliorate and solvehuman rights problems. SpecialRapporteurs 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 investigateallegationsof human rights violations. SpecialRapporteurs also regularly assessand verify complaints madebyalleged 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 whatis.12

In Prof. Anayas words An array of procedures involving international

institutions exist encouragingstates 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 in ternational 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 as

international instr uments, 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 Seenote 10 at 50 (emphasis in original). 13 Seenote 10 at 290. 14 The Statute of the International Court of Justice recognizesthe existenceof customary international lawin Article 38(1)(b),incorporated by Article92 into the United Nations Charter: The Court, whose functionis to decide in accordance with international law such disputes asare submitted to it, shall apply...internationalcustom, as evidenceof a general practice accepted aslaw. Seealso Articles 34 to 38of 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.
http://untreaty.un.org/ilc/texts/instruments/english/http://untreaty.un.org/ilc/texts/instruments/english/


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Supreme Court of Belize in Cal v. Attorney General 16 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, of

enduring and fundamentally unfair legalarrangements. It builds upon growingawarenessthat 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 monetar y encouragement for continuing to provideenvironmental services that promote conservation and sustainable development. 19

The emerging nor m 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 they

depend 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. Intl 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).
http://www.law.arizona.edu/depts/iplp/advocacy/mhttp://pib.socioambiental.org/en/c/terras-indigenas/servicos-http://pib.socioambiental.org/en/c/terras-indigenas/servicos-http://i

The Judicial Review of Constitutional Amendments

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