The Judicial Review of Constitutional Amendments

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PHILIPPINE LAW AND SOCIETY REVIEW VOL. 1 NO. 1
2

EDITORIAL BOARD

Editor in Chief

Professor Florin T. Hilbay
UP College of Law

Board of Editors
President Francisco Nemenzo, University of the Philippines
Dean Pacifico A. Agabin, UP College of Law
Dean Raul C. Pangalangan, UP College of Law

Dean Emmanuel De Dios, UP School of Economics
Dr. Sylvia Estrada Claudio, UP Center for Womens Studies
Dean Antonio G.M. La Via, Ateneo School of Government
3

note from the editor

Law as a social phenomenon is a discourse of impressive structuresit breeds life
and doctrine, meaning and language, thought and authority. It speaks with many
voices: power, freedom, dignity, ethics, rights, justice. The noise generated by the
various discourses of law create an intellectual landscape that can be mined for the
kinds of insight that not only have the potential to enhance the jargon we have
come to associate with law but also promote its grander, if not nobler, aims.

It is with these ideas in mind that we introduce the Philippine Law and Society Review,
a publication of the UP College of Law that caters to a wide array of investigations
about the intersection between law and society. This effort is at once overdue and
timely. For both students of law and observers of society who have long spoken
about the relationship between the legal and the social but have lacked the
necessary space for the articulation of such a discourse, the PLSR is a new channel
for interdisciplinary studies. For the scholar who believes that the self-containedand
therefore self-validatingjargon of law furnishes a very limited platform for
observation, the PLSR is a wide expanse for critical, empirical, and theoretical
examination.

Merlin Magallonas paper, Theses on the Impact of International Legal Relations on the
Constitutional System, proceeds in two parts. Part One deals with how the Philippine constitution
governs the nature and function of the principles and norms of international law in the
national sphere. It illustrates the resulting changes in the treatment of these
principles of international law once they are incorporated or transformed through
mechanisms allowed by the Constitution. It also highlights the different characters
the same principles assume in the national and international arena and exposes the
difficulties that arise owing to the failure to respect the duality of these legal regimes.

Part Two accounts for how globalization has led to the expansion of international legal
regulation over matters of national jurisdiction. Global integration has given birth to a
supranational order. This paper explores the impact of such a phenomenon on our
constitutional system and reexamines the role and impact of the Treaty Clause in
legitimizing the supranational direction of our nations policies and ultimately, the
derogation of our right to self-determination and independence in international law.

4

note from the editor

Owen Lynchs Mandating Recognition establishes that the trend in international law is
towards mandating the legal recognition of native/aboriginal title. There is growing
evidence to that effect, as shown by international conventions and declarations,
decisions of international tribunals, and emerging international standards. This
paper presents and analyzes each of these decisions and standards. It asserts that
given such evidence, international law, including international customary law, now,
more than ever, supports and mandates legal recognition of native/aboriginal title.

In The Judicial Review of Constitutional Amendments, Dante Gatmaytan examines the
judicial review powers of the Philippine Supreme Court under the 1987 Constitution.
He posits that Ginsburgs insurance theory on constitutional design operated within
the Philippine experience, albeit with a twist: The powers of the Supreme Court, shaped
by non-political actors with little or no vested interests in securing future political
power, allowed the Court to be a more effective guardian of democratic institutions.

We hope the articles in this first issue represent and begin an enduring and
meaningful conversation about law and society in the Philippines.

Welcome!

Florin T. Hilbay

5

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
IMPACT OF INTERNATIONAL LEGAL RELATIONS 6

THESES 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 nature
and function of the principles and norms of public international law in the national sphere. It outlines
a framework by which it deals with problems pertaining to the relation of international law and
national law, from the standpoint of constitutional law. It aims to assist in resolving issues arising
from the confusion in the application of principles of international law: whether in the international
sphere or in the national plane. It illustrates this confusion in what appears to be an unexamined, or
even mindless, situations detected in Supreme Court decisions.

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

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

COLLEGE OF LAW.

PART ONE

Internalization of General International Law

It is submitted as a premise that the Constitution requires as a sine qua non of
their application in Philippine jurisdiction that principles and norms of international
law must first be incorporated or transformed into national law. The Constitution has
designed two mechanisms by which this is to be fulfilled, namely: the Incorporation
Clause and the Treaty Clause. As explained below, incorporation or transformation is
a peremptory mandate of the national legal system.

The mechanism in the Incorporation Clause is described in Section 2, Article
II of the Constitution, as follows:

The Philippines. . .adopts the generally accepted principles of international
law as part of the law of the land. . .

To begin with, it is instructive to explain this mechanism by reference to the
prevailing mythology as conceptualized in USA vs. Guinto
1
as follows:

Sovereign immunity is one of the generally accepted principles of international
law that we have adopted as part of the law of the land under Article II,
Section 2 [of the Constitution].

Even without such affirmation, we would still be bound by the generally
accepted principles under the doctrine of incorporation. Under this
doctrine of incorporation, as accepted by the majority of States, such
principles are deemed incorporated in the law of every civilized state as a
condition and consequence of its membership in the society of nations.
Upon its admission to such society, the state is automatically obligated to
comply with these principles in relation with other states.

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

1
182 SCRA 644, 653 (1990).

In the international plane, USA vs. Guinto may be acceptable in that, the generally
accepted principle of international law are binding upon States as subjects of law. They
are binding on the Philippines not by reason of the Incorporation Clause, but on account
of the Constitution. By the nature of these principles as general international law, their
binding force governs the conduct of States and other persons in international law.

But it is in the context of national law that the Incorporation Clause assumes
its real function. Here, the Incorporation Clause becomes an indispensable mechanism
by which the Constitution changes the status of the generally accepted principles of
international law from the international plane to the national sphere and thereby
become part of Philippine law.

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

In the national plane, the principles of general international law form part of
national law not by mythical automatic incorporation but by reason of express directive
of the fundamental law embodied in the Incorporation Clause; unless so ordained,
they cannot be creative of enforceable rights and obligations under Philippine law.

By means of the Incorporation Clause, the Constitution contemplates the
following results:

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

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

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

d. The same principles derive their validity from the Constitution under the
Incorporation Clause, even as their substantive content is determined by international
law. This is a marked departure from their status in the international plane, in which
they derive their validity from the norm-creating processes of the international legal order.

Transformation of Conventional International Law

The transformative mechanism of the Treaty Clause is described in Section
21, Article VII of the Constitution, thus:

No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate.

Following the orientation pursued above, this constitutional text is to be
interpreted as pertaining to the national plane as well as to the international sphere.
The treaty is valid and effective as national law and as an international agreement.
However, the treaty as international law cannot be transformed into national law unless
in the first place it has already entered into force as international law by its own provisions.

In this light, the language of Guerrero Transport Services, Inc. vs. Blayblock
Transportation Services Employees Association-Kilusan,
2
becomes pertinent:

A treaty has two aspects as an international agreement between States, and as
municipal law for the people of each state to observe.

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

2
71 SCRA 621, 629 (1976). Emphasis added.
3
Emphasis added.

process of ratification as a constitutional act.

This dualist treatment is observed in Article 2 of the Vienna Convention on
the Law of Treaties of which the Philippines is a party. Paragraph 1(a) of this Article
adopts the usage of the term treaty in the international plane, as follows:

. . . treaty means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.
3

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

The provisions of paragraph 1 regarding the use of the terms in the present
Convention are without prejudice to the use of those terms or to the meanings which
may be given to them in the internal law of any State.
4

Thus, no less than the Vienna Convention on the Law of Treaties the treaty
governing treaties respects the duality of legal regimes. The application of the concept
of treaty in a misplaced context may lead to absurd results. For example, treaty as
agreement in the international plane is used in the national jurisdiction in a case involving
its constitutionality; as a treaty in the international plane, it holds supremacy over the
Constitution and yet the domestic court at bar is in the exercise of its constitutional
power to declare that it is in violation of the Constitution.
5
Or, where the domestic
court in a constitutionality suit under the same review power, postulates that treaty
which it uses apparently in the context of the international plane is by nature in
derogation of State sovereignty although in fact it is dealing with a treaty as domestic law,
thus implying that a treaty as domestic law may be in derogation of Philippine sovereignty.
6

The two constitutional mechanisms for the internalization of generally
accepted principles of international law and of binding conventional rules into

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

10
IMPACT OF INTERNATIONAL LEGAL RELA-

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

The dividing line between these sources of law is drawn by the scope of their
binding character as thus indicated. The constitutional design adopts this categorization
and thus maintains the juridical distinction between norms of customary or general
international law under the Incorporation Clause, on one hand; and conventional or
treaty law under the Treaty Clause, on the other. Disregard of this categorization may
have been committed by the domestic court in its pronouncement that the entire
multilateral convention in issue may be subsumed under the Incorporation Clause.
7

Or, in the obiter dictum of the court that the right to return to ones country as
provided in the international human rights covenant, of which the Philippines is already
a party, becomes part of national law by reason of the Incorporation Clause.
8

As against the supremacy of the treaty over the Constitution in the
international plane, the Constitution embodies the principle that in the national
sphere there are no nor ms higher than constitutional norms, in particular in regard
to conventional international norms. Representing the core provision in the dual
character of Philippine jurisdiction, in Section 5(2)(a), Article VIII reads:

The Supreme Court shall have the following powers:

. Review, revise, reverse, modify, or affirm on appeal or certiorari as the
law or the Rules of Court may provide, final judgments and orders of the
lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international

7
See Agustin vs. Edu, 88 SCRA 195 (1979).
8
See Marcos vs. Manglapus,177 SCRA 668 (1989).

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 is
extended to statutory enactments over treaties:

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

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

On two fundamental points, Abbas vs. Commission on 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 the
Congress of the Philippines, rather it would be in the same class as the latter. Thus,
if at all, R.A. 6734 would be amendatory of the Tripoli Agreement, being a
subsequent law.
13

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.

In the first place, Abbas sets aside the supremacy of the Act of Congress and
installs the theory that the treaty is in parity with the statute. Secondly, in case of
irreconcilable incompatibility between them, Abbas resolves this problem by the later-
in-time principle or lex posterior derogate priori, in place of the Gonzales thesis of the
Act of Congress nullifying the treaty. While Abbas limits itself to the amendatory or
repealing effect, Gonzales goes on to the extreme of nullification; the practical effect
may hold little difference in both cases from the viewpoint of the international plane
in regard to the possible result in terms of state responsibility: a sharper confrontation
between the national legal system and the law in the international plane.

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

The wrongfulness of an act is determined by international law and such
determination is not affected by the characterization of the same act as lawful by internal
law.
16
In conformity with the Constitution, the Supreme Court may strike down a treaty as
unconstitutional, reducing it to nullity as national law, with the consequence that no State
organ or official would ever take action in compliance with the obligation of the Philippines
under that treaty, leading the other States Parties to consider the Philippines as having
committed an internationally wrongful act. Being an organ of the State, the Courts conduct
may be attributable to the Philippines as its own act under international law.

14
This concept of state responsibility is derived from the Draft Articles on Responsibility of States
for Internationally Wrongful Acts, prepared by the International Law Commission which it adopted
at its 53
rd
session in 2001 and submitted to the U.N. General Assembly. Text of the Draft Articles is
published in the UN, The Work of the International Commission, Vol. I, 6
th
ed., 2004, pp. 372-385.
The Draft Articles reflect customary law.
15
See ILC Draft Article 2.
16
See ILC Draft Article 3.

In brief, the conduct of the Supreme Court may constitute a breach of
international obligation of the State, on account of such internationally wrongful
act.
17
The for mula in Ichong vs. Her nandez that the treaty is always subject to
qualification or amendment by law
18
is good for the consumption of the national-law
regimes, but the rights and obligations of the States Parties to the treaty remain
unaffected. Along the same principle, to be strictly confined to national law is the
application of lex posterior derogat priori in Secretary of Justice vs. Lantion
19
to the effect
that a treaty may repeal a statute and a statute may repeal a treaty.

Confusion in relating international law to national law may result in the following
anomaly. In a constitutionality suit against the Visiting Forces Agreement (VFA)
concluded between the Philippines and the United States, the Supreme Courts power
to declare a treaty or international agreement unconstitutional is invoked.
20

Apparently disjointed out of this context is the Courts affirmation that:

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

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.

From this standpoint, the Court may have created the need to be reminded
that it is not sitting as an international tribunal which subordinates the Constitution to
treaty obligations and, in doing so, does violence to the nature of the case at bar which is
instituted for the purpose of determining whether the treaty in questionthe VFA
contravenes the Constitution. Bayan, reversing the situation, now appears to turn the table
and raise the issue instead as to whether the Constitution should be interpreted in
conformity with the obligations under the VFA. It lends itself to the misconception that
in domestic jurisdiction, the Constitution may be held to be violative of treaty law.

Under the Treaty Clause of the Constitution, given above, it is the concurrence
of the Senate alone that appears to make the treaty valid and effective as domestic law
and as international agreement, in the context of the national sphere. With respect to
multilateral conventions in particular, the law in the international plane is in complementarity
with the law in the national sphere. Independent of national law, a multilateral convention
becomes international law by means of the provision on its own entry into force.

If by the time such a convention is concurred in by the Senate it has already
entered into force by its own provision, then it becomes valid and effective as
national law because at that moment and for that reason it has already assumed
the character of international law. If the convention has not yet entered into
force by that time, the effect of Senate concurrence is merged into the number of
ratifications required under the entry-into-force provision of the convention, thus
contributing a step towards its entry into force and towards its transformation
into national law. In brief, an international convention may be internalized as
national law if it has already become international law by its own provision.

22
The Case of the S.S. Lotus (France v. Turkey), 1927, P.C.I.J. (ser. A) No. 10, at 18. (Sept. 7).
16

PART TWO

The Globalization Setting

T he str ucture and modalities of inter national law have underg one
transformation such that its relations to the national-law system generates pressures
for fundamental adjustments in the national constitutional order. An estimate of this
transformation may be illustrated by a reference to the well-known presumption
formulated by the Permanent Court of International Justice in the Lotus Case that
restrictions upon the independence of States cannot therefore be presumed.
22

This implies that States are assured to have an independent means of action,
unless it is clearly shown that their freedom is limited by customary norms or
conventional rules of international law. Owing to the increasing integration of human
affairs and institutions into a global community, the corresponding progress of international
law spells the tremendous expansion of international legal regulation over matters of
domestic jurisdiction, with the result that little ground may have been left for the latter.
In fine, we may have arrived at the threshold of reversal of the Lotus presumption; it is
the independence of States that cannot be presumed. They carry the burden to show
that their acts in question are yet retained within their domestic jurisdiction.

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

23
33 ILM 1125 (1994).
24
John H. Jackson, Reflections on International Economic Law, 17 U. Pa. J. Intl L. 17 (1996).
25
1 Phil. T.S. 117. See art. X.
26
Joseph Gold, Developments in the International Monetary System, the International Monetary Fund, and
International Monetary Law Since 1971, 174 Recueil des Cours 107, 160 (1982-I).
27
1 Phil. T.S. 149.

IMPACT OF INTERNATIONAL LEGAL RELATIONS
17

A focal point in the transformative stage is the advent of the Agreement
Establishing the World Trade Organization (WTO),
23
a product of global trade
negotiations described as a watershed shift and the most profound change in international
economic relations, institutions, and structures since the origin of the Bretton Woods
System at the end of the World War II.
24
Since that time, the reconstruction, development
and stability of the world economy have been largely sustained by the operations of
two international organizations, namely, the International Monetary Fund (IMF) and the
International Bank of Reconstruction and Development or the World Bank.

The World Trade Organization, the International Monetary Fund and the World
Bank have interconnected functions. Under its Articles of Agreement,
25
the IMF has a
legal basis to establish close cooperation with the World Bank, which has been systematized
in practice.
26
On its part, the World Bank has interpreted its Articles of Agreement
27
as
authority to make and guarantee loans not only for specific projects but for programs
of reconstruction of the monetary system, which relates its operations to the IMFs
field of responsibility. Article III (5) of the WTO Agreement is explicit on the necessity
for achieving what it calls greater coherence in global economic policy-making, and
for this purpose it provides that the WTO shall cooperate. . . . with the International
Monetary and with the International Bank for Reconstruction and Development.

In the first Ministerial Conference of the WTO in December 1996 at Singapore,
it was announced that the IMF and the World Bank signed an agreement with the
WTO on the terms of cooperation with the view to further integrate developing
countries into the global economy.
28
Each organization holds tremendous influence
in controlling the decisive course of individual national economies. Certainly, the
driving force of their well-coordinated operations will accelerate the globalization trends
towards the totalizing integration of the developing countries.

28
NEWS ASIA, 11 December 1996, at 1.
29
See Christoph Schreuer, The Significance of International Organizations in Current International Law, 38
Law and State 63, 64 (1988).
18

International Law as Decision-Making Process

This background leads us to a survey of the significance of one category of
international-law rules, namely, the principles, standards and norms that are embodied
in (a) the Articles of Agreement of the International Monetary Fund; (b) the Articles
of Agreement of the International Bank for Reconstruction and Development; and
(c) the Agreement Establishing the World Trade Organization.

International law is traditionally identified with the formal sources set forth in
Article 38(1) of the Statute of the International Court of Justice, consisting of
international conventions, international customs and general principles of law. In
this setting, international law is viewed as ready-made rules designed to be applied in
resolving disputes.
29
The dynamics of the International legal order lies as much in the
policy-changing mechanisms, re-structuring of power and processes of making decisions.
International law in the operations of the globalization triad, described above, is not so
much a system of neutral rules as a system of decision-making directed towards the
attainment of certain declared values.
30
The forms and methods are derived from traditional
international law but the substantive content embodies the policy goals of the triad.

Self-Determination Subject to Conditionalities

In this light, the development of international law governing the globalized
economy has given rise to a supranational legal order in which international law as
legal decision-making in the perception of Higgins is exercised by the principal
organs of the IMF, the World Bank and the WTO, for compliance by members of this
triad. The supranational legal system has the following constituent elements:

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

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 Intl and Comp. L. Q. 58, 59 (1966).
31
A.J.P. Tammes, Decisions of International Organs as a Source of Law, 94 Recueil des Cours 261, 269 (1988-II).

States composing it.

b. By the same agreement the principal organs of the international organization
are created, the decisions of which are deemed in law as those of the organization.

c. The principal organs determine the concrete terms and conditions of the
relation between the organization and its members.

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

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

Quite apart from the obligations embodied in their constituent instruments
or charters of the IMF, the World Bank and the WTO, their principal organs have the
competence to create binding commitments on the part of the members by imposing
conditionalities in loan and guarantee agreement as well as in entitlement to financial
facilities from the organizations.

On the supranational level, the decisions of the Board of Governors or the
Executive Directors of the IMF or of the World Bank, or the decision-making organs
of the WTO, hold supremacy over national laws and policies. For example, Article
XIV (4) of the WTO Agreement provides: Each member shall ensure the conformity
of its laws, regulations and administrative procedures with its obligations as provided
in the Annexed Agreements. This serves as an integral part of the WTO dispute settlement
procedure that if the laws and regulations of a member are determined to be in contravention

32
Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh
Agreement Establishing the World Trade Organization, Annex 2, THE LEGAL TEXTS: THE
RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 354
(1999), 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) [hereinafter DSU], art. 3, 7, 22.
33
DSU, id., art. 21.
34
DSU, supra note 32, art. 23.

of its WTO commitments, it must make the necessary changes or adjustments in its laws
or policies within the required period to avoid sanctions in the form of suspension or
removal of concessions or retaliation by the complainant member.
32
Compliance with
such decisions is subject to surveillance to ensure implementation or enforcement.
33

This mechanism of dispute settlement is applicable to conflicts involving laws and
policies of a member vis--vis its obligations under the vast field of WTO regulatory
coverage which include trade in goods, trade in services, trade-related intellectual
property rights, agriculture, textile and clothing, trade-related investment measures,
subsidies and countervailing measures, technical barriers to trade, and rules of origin.

It is characteristic of the WTO dispute settlement mechanism that members
are not allowed to take unilateral action in redress of a breach of WTO commitment
or impairment of benefits under the WTO Agreement.
34
Article 23 of the DSU requires
them to resort to the prescribed procedure of resolving disputes, including determination
of retaliation. The devolution of power to the WTO is complete, supreme and exclusive.

In international monetary matters, the IMFs prerogative in controlling the
effectiveness of enforcement is not limited to passive prohibition; it involves specific
affirmative approval by the Board of Directors or the Executive Directors with respect
to relevant national decisions and policies. The IMF jurisdiction is so comprehensive
and commanding that the legal obligations they embody under Article IV of the IMF
Articles of Agreement allow the IMF to intervene in every aspect of the national
monetary policy-making. Under Section 1 of this Article, the Philippines has the
obligation to (a) direct its economic and financial policies towards the objective of
fostering orderly economic growth with reasonable price stability; (b) promote stability
by fostering economic and financial conditions and monetary system that does not
tend to produce erratic disruptions; (c) avoid manipulating exchange rates or the
international monetary system in order to prevent effective balance of payments
adjustment or to gain an unfair competitive advantage over other members; and (d)
follow exchange policies compatible with the foregoing obligations. This statement
of obligations, limited as it is, cannot be contained within the countrys monetary system
alone. It affects the entire national economy, and thus the IMFs hegemonic control entails
intervention into the whole field of decision-making in the entire national economy.

Section 3(a), Article IV of the IMFs Articles of Agreement empowers it to
oversee the compliance of each member with its obligations. To make this effective,

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

Impact of International Law as Process

It is in the availment of financial resources of the IMF and the World Bank by
the Philippines that the supranational authorities assume commanding control over
the strategic directions and structuring of the national economy. Together with the
Asian Development Bank, the World Bank is the main source of development funds,
which the Philippines by its own internal sources is incapable of generating. This vital
need all the more makes decisive the role of the World Bank in shaping the countrys
economic as well as political and social life. The right to self-determination the nodal
element of a States independence under international law is derogated by the concept
of development made by the decision-making processes of the supranational authorities.

In the context of these processes, the real object and purpose of the financial
facilities derived from these sources is to effect policy and institutional changes required by
the supranational authorities. President Julius Nyerere of Tanzania may have disclosed not
only a political but a moral predicament as well in the relations of developing countries with
the supranational authorities when he said: The IMF has an ideology of political and social
development which it is trying to impose on poor countries irrespective of their own clearly
stated policies . . . And when we reject IMF conditions we have the threatening whisper: Without
accepting our conditions you will not get any money, and you will not get no other money.
35

The policy and institutional changes effected by the supranational authorities
may have produced more dramatic and far-reaching transformations than those
brought about by the independent initiative of the Congress or the Executive

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).

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

It is in this peculiar context of economic and political transformation in the national
community that some controversies of significance have reached the Supreme Court.
Notably, these are Taada vs. Angara
36
as regards the ratification of the WTO Agreement;
Manila Prince Hotel Corporation vs. Government Service Insurance System
37
with respect to the
government privatization policy; and Tatad vs. Secretary
38
on the oil deregulation law.

These controversies mark the impact of authoritarianism of the supranational
organizations and shed light on the consequences of their policy demands. In one
respect, they show us the understanding as to how the Courts decision1 in Tatad vs.
Secretary deals with a major policy prescription of the supranationals, resulting in the
disruption of the long-standing practice of exploiting the countrys need for funds as
a means of extracting policy and institutional changes by these external forces.

The IMF and the World Bank had long pursued the demand on the government
to free the oil industry from pricing restriction by government regulation and to remove
the subsidy from the Oil Stabilization Fund. The desired policy on their part was to
allow the market to determine the price of oil products, which meant that the oil
transnational corporations themselves would be the ones to set the price for their
products. The IMF team which reviewed the economic performance of the Aquino
administration underscored this demand.
39
To the IMF, deregulation of the oil industry
became a criterion for the countrys economic recovery.
40
The World Bank commissioned
a study on the deregulation of the oil industry for approval by the Cabinet.
41

39
IMF Wants Govt 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.

Enacted into law as an administration measure, the IMF-sponsored
deregulation measure for the oil industry became Republic Act No. 8181, An Act
Deregulating the Downstream Oil Industry and for Other Purposes.

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

However, later, the IMF came back and demanded a new oil deregulation law
as a condition to ending the IMF program and its supervision of the national economy.
42

The IMF Executive Directors postponed the projected release of the Philippines from
the IMFs hold pending the enactment of a new deregulation law.
43
When Congress passed
the revised deregulation law in Republic Act No. 8479, the executive department expressed
dissatisfaction because the new law failed to comply with the IMFs Extended Fund
Facility in which the Philippines committed itself to the deregulation of the oil
industry.
44
In the end, President Fidel V. Ramos placed the authority of his office behind
the prospects for a solution more satisfactory to the IMF, declaring: All parties are
working hard to have it done in a manner that will be acceptable to the IMF.
45

The case of the Oil Deregulation Law is not an isolated one. The enactment
of the Comprehensive Tax Reform Law in Republic Act No. 8424 was conditionality
of the IMF attached to the Extended Fund Facility, one of the structural reforms
required by the IMF.
46
In a landmark restructuring of the countrys monetary and
financial institutions, Congress enacted Republic Act No. 7653 establishing the Bangko

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 Exit
Poses Challenges to RP, MLA CHRON, February 21, 1997, at 11; Exit Delayed; IMF Program to Continue,
MLA BULL., June 5, 1997, at B-1; Rocel Felix, Partial Oil Deregulation Gets Underway, PHIL. STAR, July 17,
1996, at 27.
47
Fil C. Sionil, Special Report: Economic Blueprint of Ramos Govt Bared, MLA BULL, July 27, 1992, at B-1.

Sentral ng Pilipinas, in place of the Central Bank Act. This initiative proceeded from
the World Bank, with the support of the IMF, as a conditionality attached to Financial
Sectoral Adjustment Loan intended to ensure the independence of the monetary
agency through the representation of five members from the private sector in the
Monetary Board, as against two from the government sector.
47

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

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

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

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

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.

in the EIL Policy Matrix. The Economic Agenda of the Ramos Administration
had been described as based on the EIL Policy Matrix of the World Bank. It
appears that the entire program of the government became a conditionality for
loans and credits from the supranational authorities.

c. The comprehensive field of policies which engages the controlling influence
of the supranational authorities proves to be more significant than the scope of
congressional power. In fact, as already illustrated, their policy initiatives are funneled
into the legislative mill. There are, however, policy conditionalities of strategic
and far-reaching consequences that did not enter the congressional agenda; a notable
example is the policy of privatization and deregulation which, as a conditionality
stipulated in MEFP, has gone a long way in implementation by the Executive
Department. Strategic industries vital to national security have been privatized, such
as National Steel, Philippine National Bank, Petron and Philippine Air Lines.

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

Loan and guarantee agreements with the World Bank and its subsidiaries present
a special problem. Since these agreements create legal relations in that they define rights
and duties under international law, are they not subject to Senate concurrence? The problem
is complicated by the fact that set apart from the Treaty Clause in Section 21, Article VII of
the Constitution is a provision dealing with the power of the President under Section 20,
Article VII to contract or guarantee foreign loans with the prior concurrence of the

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.

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

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

In analyzing the legal nature of the [World] Banks loan and guarantee agreements
with its members, I shall be concerned primarily to consider by what rules of law
these agreements are governed. My conclusion will be that they are international
agreements governed by international law.
50

The Loan Regulations of the World Bank provides:

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

Interpreting this provision, Broches is of the position that:

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

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

52
Broches, op. cit., supra 49, at 345.
53
Id. at 353.

It is the practice of the World Bank, as decided by its Executive Directors
that these agreements are registered with the UN Secretariat by authority of Article
102 of the UN Charter, taking into account the mandate of this provision that No
party to any such treaty or international agreement which has not been [so] registered
may invoke that treaty or international agreement before any organ of the United
Nations. Broches observes: ...that registration, or filing and recording...of the Banks
loan and guarantee agreements with its members may be regarded as confirmatory of
their character as international agreements;
53
and thus governed by international law.

From these considerations, it is reasonable to infer that the loan and guarantee
agreements under Section 20, Article VII of the Constitution are subject to Senate
concurrence as required by the Treaty Clause, insofar as they are contracted by the
Philippines with subjects of international law, i.e., with States or international
organizations. Under the Constitution, it is only by Senate concurrence that a treaty
or international agreement shall be valid and effective as Philippine law and as a
source of international obligations.

The present practice does not respect the necessity of Senate concurrence.
While this practice enjoys legislative authorization of omnibus character, all that
Congress requires of the President is to contract such loans, credits and indebtedness
as may be agreed upon, as provided in Section 1 of Republic Act No. 4860. Clearly,
Congress by generalized and comprehensive authority gives the President the fullest
discretion in determiningor receivingthe terms and conditions of the loan or guarantee
agreement under the coercive pressure of the World Bank, which are not known to Congress
at the time its omnibus authorization was enacted. Whereas, Senate concurrence becomes
at the same time a form of legislative scrutiny of the specific provisions, rights and
obligations of each agreement in the context of the immediate circumstances justifying
them. Through the Senate, legislative power provides a check to the excesses of Executive
authority in accepting onerous conditionalities embodied in the agreement. The present
situation allows considerable freedom on the part of the President to internalize into
the constitutional system the authoritarianism of the supranational authorities.

e. The overwhelming financial resources of the IMF and the World Bank may
have provided the policy turning points in the restructuring and development of the
Philippine economy more than what the plenary power of Congress may have accomplished.
Now that the WTO is fully operational, the devolution of power over the countrys

international economic relations under the WTO Agreement will increasingly exert the
constraints on the main policymaking processes under the Constitution. The triad of the
IMF, the World Bank and the WTO, through the constituent instruments ratified by the
Philippines as international law, becomes the tail wagging the entire national economy.

This should dramatize the thesis that the Treaty Clause of the Constitution is
in crisis. It has become a mechanism for transforming rules of international law to be
applied as national law. In 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 operations
of the supranational authorities which, on a continuing basis, promulgate rules and
decisions impacting on the strategic directions of the Philippine Nation-State and, in
the main, taking over its vital policy-making processes.

f. Attention is invited to the following partial coverage of the WTO Agreement,
together with Annexed Agreements. In addition to the broad categories of trade in
goods and trade in services, the scope of the WTO regulatory regime includes: (i)
banking industry; (ii) financial and security services; (iii) insurance and reinsurance
industry; (iv) transport industry; (v) intellectual property; (vi) investment measures
related to trade; (vii) agriculture; (viii) textile and clothing; (ix) custom administration;
(x) taxation and tariff system; and (xi) practice of profession.

The broad dimension of the WTO regulatory regime suggested by this list implies
that there may be a small area of domestic jurisdiction left for Congress to legislate on, if
conflict is to be avoided with treaty-based laws. Moreover, in domestic jurisdiction, Congress
may by law modify, amend or limit treaty rules when applied as national law and domestic
courts may strike down a treaty or its provision as invalid or unconstitutional. But in the
international plane, neither a legislative act nor a judicial decision may adversely affect
the treaty rights and obligations among States parties; of supremacy is the application
of the fundamental principle in international law that A party [to a treaty] may not invoke

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 determination
of customs value for the right of appeal without penalty, by the importer or among other person liable for the
payment of duty.

the provisions of its internal law as justification for its failure to perform a treaty.
54

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

Revamping the Philippine Nation-State

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

1. Liberalization of trade, which has the effect of eliminating the political
boundary in the production of goods as well as in the flow of capital, services and
labor. In a globalized setting, the countrys political boundary becomes an obstacle to the
internationalization of the production processes, for example, through global subcontracting.

2. Privatization of public industrial and financial assets and institution, intended
to eliminate public authority from the market, paving the way for unrestrained dominance
of private capital in regulating itself. In the democratic context, privatization means the
displacement of the peoples will expressed through public authority by the forces of
the market; social or public welfare gives way to private profit as a legal standard.

3. As a complement of privatization, deregulation policy reduces the role of
the State in the management of the national economy and thus enhances the power
of private capital in the operation of the economy; in other words, the curtailment of
economic sovereignty vis--vis foreign investments. The principle of profit
maximization replaces social security and public accountability.

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

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

Significant is the subject-matter of the World Banks 1997 Development Report,
The State in a Changing World. It calls for a re-thinking of the role of the State and
recommends a strategy along privatization and deregulation.

This outlook is alien to the State conceptualized in the Constitution. It is a
welfare state that is the bearer of economic and social policies, beginning with
nationalism as a fundamental creed. The Constitution defines the State as the
embodiment of the collective will of the national community proclaiming that
All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energ y, fisheries, flora and fauna, and other
natural resources are owned by the State, to be disposed of primarily for the benefit
of the Filipino citizens on the principle of interg enerational equity. It is a
fundamental law of economic sovereignty that resides in the Filipino people on the
premises of sustainable development. By the authoritarianism of the supranationals,
economic sovereignty is in the process of being fractured away from the people.

Should changes in the constitutional system take place, the constitutional convention
as its likely forum will become an ideological battleground as to the concept of the Philippine
Nation-State that will prevail, a confrontation that involves a new level of relation between
the national law of sovereignty and the international law of globalization.
MANDATING LEGAL RECOGNITION 31

MANDATING RECOGNITION: International
Law and Native/ABORIGINAL TITLE
OWEN J. LYNCH
*

ABSTRACT
**

This paper identifies, summarizes and analyzes leading international and national
laws and judicial cases recognizing or otherwise supportive of native/aboriginal title. Native/
aboriginal titles are community-based property rights typically held by indigenous peoples and
some other original, long-term-occupant local communities. The paper evinces widespread and
growing evidence that international law is moving towards (and arguably already is) mandating
legal recognition of native/aboriginal title to indigenous ter ritories and ancestral domains. It
references decisions of the International Court of Justice (ICJ), the Inter-American Court
(IAC), and the African Commission on Human and Peoples Rights, (N.B. Asia has yet to
constitute any juridical entity comparable to the IAC or its European and African 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 in
differing ways, to recognize indigenous peoples and others native/aboriginal titles. Since 1968
eleven African nations have recognized customary rights as including property rights in their
constitutions and/or land laws. Major international law conventions, declarations and other
instruments that are supportive of native/aboriginal title are also identified. Finally, the paper
summarizes leading cases and instruments in comparative/national (international 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, RIGHTS AND RESOURCES INITIATIVE; VISITING PROFESSOR, COLLEGE OF LAW, UNIVERSITY OF
THE PHILIPPINES; US FULBRIGHT SCHOLAR.
**
This paper was enhanced byand the author is deeply grateful forthe extensive comments pro-
vided by five anonymous reviewers, as well as Roshan Jose, Kristen Hite, Andy White and Jeffrey
Hatcher. For various reasons not all of their many useful suggestions could be accommodated, but
each was considered and much appreciated.

Human Rights and Environmental Justice in International Law
1

Over the past 60 plus years there has been growing attention paid to
indigenous peoples and other local communities still living in areas originally inhabited
by their forebears. This interest is prompted by various concerns, including human
rights, economic development, and environmental protection and conservation.
Meanwhile, there has been an observable increase in environmental and other
types of conflicts throughout the world, many of which are violent and profoundly
destructive of human well-being and our natural environment.

The conflicts too often revolve around issues concerning property rights,
especially those of indigenous peoples and other local communities who live in rural
areas of Africa, the Americas, Asia and the Pacific. A new and emerging early 21
st
century variant, which borders on the bizarre, involves potential discord over ownership
of carbon in trees, including trees planted and protected in long inhabited areas.

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

The increasing frequency of conflicts over property rights to land, water,
forests, trees, carbon and other natural resources is, in large measure, related to
threatening global trends concerning human demography, consumption, pollution,
violence, inequity, failed states and more. These trends increase and exacerbate
already unprecedented demands on the regenerative capacities of remaining
ecosystems. In widely varying degrees they jeopardize the precarious well-being
of all human beings, especially and most immediately vulnerable groups directly
dependent on natural resources for their very survival.

Today, overreliance on environmentally inappropriate, unfair and often
ineffective land, forestry, mining, water and other natural resource laws as well as
almost exclusively quantitative measures of development stubbornly endures. This,
in turn, exacerbates and reinforces in many areas intra-national and international
disparities in regards to wealth, poverty, and fairness, as well as environmental resources
and threats. Many environmental/ conservation initiatives, especially those intended
to protect important areas of biological diversity, remain largely indifferent and often
even hostile to economic development. Too often these conservation initiatives also
ignore human rights and cultural considerations, including the aspirations and interests
of indigenous peoples and other local communities.

Legal and other scholars, policy scientists, researchers, community advocates
and others are studying and analyzing the multidimensional nature of these seemingly
irresolvable challenges. Many increasingly perceive human rights, environmental
protection and economic development objectives as complementary, rather than as
unrelated or opposing objectives.

Despite an evolving and promising tripartite approach
2
that jointly addresses
human rights, environmental and economic concerns, and enduring international economic
crises, the prevailing and often single minded pursuit of economic growth and individual
private property rights still dominates, overwhelmingly. This pursuit is premised on theoretical
and quantitative models that subordinate and too often ignore environmental, labor and
human rights concerns, especially when they cannot be easily assessed monetarily.

2
The author is indebted to Gregory Maggio for the tripartite concept. See footnote 40 below.

Meanwhile, the growing emphasis on a tripartite approach has contributed
to increasing legal support for environmental justice on international, national and
local levels. One of the most positive indicators is broadening support for the legal
recognition of native/aboriginal title, especially in nations once subject to British
colonialism.
3
The trend is readily evident in international law instruments, particularly
the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
which was adopted by the General Assembly on 13 September 2007.
4
The UNDRIP
provides a basis for demanding greater and more meaningful participation in
international decision making processes. Unlike other legal instruments, the Declaration
does not limit the requirement for consultation and cooperation to the national level.
5

The increasing legal support for environmental justice and meaningful
participation by vulnerable groups, including indigenous peoples and other original
rural long-term-occupant local communities, is not only motivated by concerns about
basic fairness. Rather, it is a rational response to a growing body of research that
demonstrates the vital role local knowledge and incentives play in the conservation of
biological and other resources, including carbon stored in trees. A recent report by the
World Bank no less concluded that the amount of forest cover and biodiversity within
indigenous territories is higher than expected, and much higher than within strict
protected zones and areas not inhabited by indigenous peoples.
6

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 General
Assembly Adopts Declaration on Rights of Indigenous Peoples, Sep. 13, 2007, http://www.un.org/News/Press/
docs//2007/ ga10612.doc.htm (last accessed Oct. 30, 2011); http://www.iwgia.org/sw248.asp; World
Bank Operational Policy 4.10 of 2005.
5
Foundation for International Law and Development (FIELD). Ways for Indigenous Peoples groups to
advance adaptation concerns and solutions through international fora (mimeo.) (2009). Prepared for the
Inuit Circumpolar Council in Alaska (on file with the Author).
6
A. Nelson and K. Chomitz, Do Protected Areas Reduce Deforestation?: A Global Assessment with
Implications for REDD, Washington, DC: World Bank Independent Investment Group (2009), http://
www.rightsandresources.org/ publication_details.php?publicationID=1373 (on file with the Author).
Included in the assessment was proof, using satellite imagery, that biodiversity conservation is higher
within indigenous peoples territories than outside, two times higher than expected. See also The Wealth of
the Poor : Managing Ecosystems to Fight Poverty, World Resource Institute, World Resources Report 2005,
available at http://www.wri.org/publication/world-resources-2005-wealth-poor-managing-ecosystems-
fight-poverty (last accessed Oct. 30, 2011); A. Molnar, S. Scherr and A. Khare. Who Conserves the Worlds

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

Self-Determination vis--vis Native/Aboriginal Title

Although related, there are major differences between concepts of self-
determination and native/aboriginal title. In Roman law the concept of imperium, or
sovereignty, was often referred to as formal legal authority exercised by senior
government officialdom over territorially expansive areas, sometimes with virtually
absolute power, particularly in the case of some emperors. Originally a military concept,
the word was derived from the Latin verb imperare (to command): the right was based
on the power of the empire, i.e. the state, to enforce its law within its territories.
Dominium, or dominion, on the other hand was understood to be much more limited in
scope. It referred to legal authority to manage and otherwise control the use and
exploitation of specific areas of land and other natural resources.
7

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

Forests? Community-Driven Strategies to Protect Forests and Respect Rights, Washington, DC, Rights and Resources
Initiative (2004); Ed Ayres, Mapping Diversity: Mapping the Nature of Diversity: A Landmark Project
Reveals a Remarkable Correspondence Between Indigenous Land Use and the Survival of Natural Areas,
http://www.worldwatch.org/node/533 (last accessed October 30, 2011); J. Alcorn, Indigenous Peoples
and Conservation, CONSERVATION BIOLOGY 424 (1993).
7
The author owes his understanding of the difference between imperium and dominium to extended
conversations during the 1980s with the late professor of Roman law at the University of the Philippines
College of Law, Perfecto V. Fernandez.
8
An anonymous reviewer of an earlier draft of this paper observed that Whereas all peoples (including
indigenous peoples) have the right to self-determination, all persons have property rights. The African
Charter on Human and Peoples Rights consciously makes this distinction between the two sets of
rights. Native/aboriginal titles are held by peoples and/or persons.

To be more explicit, under international law, issues related to imperium, i.e., sovereignty
and self-determination, arguably pertain only to inchoate rights of indigenous peoples,
and not to other local communities including those comprised of original, long term
occupants. In the authors opinion, international laws concerning native/aboriginal
title pertain to both indigenous and some other local communities comprised of original
long term occupants whether or not their property rights are yet recognized and
documented by the nation state in which they are located.
9

It merits emphasizing that The character of international law has evolved
with shifts in the ordering of political power and burgeoning of international institutions
that constitute themselves on precepts of a peaceful and just world order.
10
Prof.
James Anaya, the UN Special Rapporteur on Indigenous Rights,
11
adds that international
law has been made to include a burgeoning and influential transnational discourse
concerned with achieving peace and a minimum of human suffering.

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

He goes on to aver:

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

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

International Law Mandates Recognition

Today, it is no longer premature to assert that international law,
including international customary (comparative/national) law,
14
mandates legal
recognition of native/aboriginal title.
15
In other words, from Canada to Malaysia,
South Africa to Australia, Papua New Guinea to Brazil, international customary
law, based primarily on a growing number of national laws and cases, as well as
international instr uments, principles, and court decisions, now prescribes the
domestic legal recognition of aboriginal/indigenous property rights.

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

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

Supreme Court of Belize in Cal v. Attorney General
16
there already are an overwhelming
number of states reflecting the growing consensus and the general principles of
international law on indigenous peoples and their lands and resources.
17

The trend in support of legal recognition of native/aboriginal titles held
by indigenous peoples and other original long-term occupants is clear in international
law and international comparative (national) law. This trend reflects broadening
acknowledgment, and in some national contexts politically necessary amelioration, of
enduring and fundamentally unfair legal arrangements. It builds upon growing awareness
that the local knowledge and practices of long-term occupants often contribute to
conservation and sustainable management of forests and biodiversity. This development
is evident even within the World Bank,
18
and in some instances has resulted in local
communities receiving monetar y encouragement for continuing to provide
environmental services that promote conservation and sustainable development.
19

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

16
Claims Nos. 171 and 172 (2007) available at www.law.arizona.edu/depts/iplp/advocacy/m
aya_belize/documents/ClaimsNos171and172of2007.pdf (last accessed October 30, 2011).
17
For background on the case in Belize see below.
18
See footnote 6 above.
19
See, e.g., What is an Environmental Service? http://pib.socioambiental.org/en/c/terras-indigenas/servicos-
ambientais/o-que-e-servico-ambiental (last accessed October 30, 2011); Fair Deals For Watershed Services In
Indonesia, http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=448: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 Bank
Executive Directors on Free Prior Informed Consent (2004), available at http://www.bicusa.org/bicusa/
issues/FPIC_briefing_documents.pdf (on file with the Author).

its authority from and is recognized not only by international law, but also natural law
concepts; the existence of a right to FPIC is not necessarily dependent on governments
or any creation, grant or recognition by a particular nation state.
22

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

A consortium of leading international environmental NGOs, including the
World Conservation Union (IUCN), the World Commission on Protected Areas (WCPA)
and the World Wide Fund for Nature/World Wildlife Fund (WWF), promulgated a Joint
Policy Statement on Principles and Guidelines on Indigenous and Traditional Peoples and
Protected Areas. In it they agreed that rights should be respected in relation to the

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

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

T he broadening conce pt of international environmental justice and
conservation and duties to promote and protect it reflects an ever more globally
acknowledged basic moral principle: human beings, including those belonging to
indigenous and other local communities, have a basic human right to participate
effectively in official decision-making processes that directly impact the natural
resources they depend on for life and livelihoods. The section that follows presents
the international legal basis for this conclusion.

I. Environmental Justice in International Law

A. Conventions and Declarations

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

25
IUCN, WCPA & WWF, Joint Policy Statement on Indigenous and Traditional Peoples and Protected
Areas: Principles and Guidelines (1996) available at http://www.worldwildlife.org/what/communityaction/
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 Every
human being has an inherent right to life. For a list of internationally recognized human rights instruments.
See http://www2.ohchr.org/english/law/ccpr.htm (last accessed Oct. 30, 2011).
27
The 1993 Vienna Declaration and Program of Action states in Part I, para. 11 that The right to development
should be fulfilled so as to meet equitably the developmental and environmental needs of present and future
generations.

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

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

28
The Preamble of the UN International Convention of Civil and Political Rights affirms that this
right to human life arises from the inherent dignity of the human person.
29
Declaration on the Right to Development, available at http://www.un.org/documents/ga/res/41/a41r128.htm
(last accessed Oct. 30, 2011). The charter of the UN includes development as among the goals of its agenda
for economic and social development. Article 23 of the Declaration on the Rights of Indigenous Peoples
elaborates: Indigenous peoples have the right to determine and develop priorities and strategies for
exercising their right to development. In particular, indigenous peoples have the right to be actively
involved in developing and determining health, housing and other economic and social programmes
affecting them and, as far as possible, to administer such programmes through their own institutions.
The African Charter on Human and Peoples Rights states in its Preamble it is henceforth essential to pay
a particular attention to the right to development and that civil and political rights cannot be dissociated
from economic, social and cultural rights in their conception as well as universality and that the satisfaction
of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.
30
Article 25 of the UN Covenant on Civil and Political Rights promotes democratic government based on
the consent of people and in conformity with the principles of the Covenant. The Covenant is largely
concerned with elections, rights to vote, run for office, assemble, etc. Remarkably, except for UN DRIP and
the Aarhus Convention for Europe, as of 2010 there is no widely recognized right in international law
ensuring that individuals and local communities can participate in environmental decisions that directly
impact on their lives and livelihoods.
31
Article 20, UN Universal Declaration of Human Rights. Article 20 of the UN Covenant on Economic,
Social and Cultural Rights contains some of the most significant international legal provisions relevant
to this paper, including rights to social protection, to an adequate standard of living, to education and
enjoyment of the benefits of cultural freedom and scientific progress. It also provides equal rights for
women and men; the right to just and favorable conditions of work; the right to protection and assistance
to the family; the right to adequate standard of living; the right to education; the right to take part in
cultural life; and the right to enjoy the benefits of scientific progress and its applications. These rights
were reaffirmed anew a half century later in the 2007 UN DRIP.
32
Article 19, UN Universal Declaration of Human Rights.
33
Article 6(1), European Convention on Human Rights.

the right to freedom of religion, including protection of sacred sites,
37
and the right to
cultural integrity.
38
Some of these rights, and others, are expanded upon in Agenda 21.

The first major international law instrument to link human rights and
environmental-protection objectives is the Stockholm Declaration on the United
Nations Conference on the Human Environment of 1972.
39
Following Stockholm, a
major shift in thinking and in development programs took hold and spread.
40
Since
then the realm of international law and environmental concerns has begun to address
an expanding number of environmental justice issues.

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

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

Evidence of the favorable trend supporting recognition of native/aboriginal
titles held by indigenous and some other original-long-term-occupant local communities
in international law is readily apparent and widespread in UNDRIP and elsewhere.
At minimum the prevailing trend is to ensure that local communities are not
involuntarily and forcibly removed from their ancestral domains and are able to
participate meaningfully in official decisions that directly impact the natural
resources they depend on for their lives and livelihoods. This trend is evident in
Europe, Africa, the Americas, Asia and the Pacific.
41

The UNDRIP recognizes:

the urgent need to respect and promote the inherent rights of indigenous peoples
which derive from their political, economic and social structures and from their
cultures, spiritual traditions, histories and philosophies, especially their rights to
their lands, territories and resources.
42

It likewise acknowledges:

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

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

41
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 the
Declaration, the U.S. ambassador to the UN announced that the United States is undertaking a review of its
opposition. See http://blogs.alternet.org/speakeasy/2010/04/24/united-states-re-examines-opposition-to-un-
declaration/ (last accessed Oct. 30, 2011). Only Canada and the USA remain holdouts today. See
www.survivalinternational.org/news/5846 (last accessed October 30, 2011). Canadas House of Commons
passed a motion on April 8, 2008 endorsing the UNDRIP and calling upon Parliament and the Government
of Canada to fully implement the standards contained therein; however, Canada has yet to sign on. See http:/
/firstnationstaskforce.wordpress.com/about (last accessed October 30, 2011). Eleven states, including Kenya,
Nigeria, the Russian Federation, Ukraine and Columbia abstained, or were not present. i.e., absent, during the
vote, such as Ethiopia, Cote dIvoire, Chad, Somalia, Uganda, Papua New Guinea and several other Pacific
Island nations. See www.un.org/News/Press/docs//2007/ga10612.doc.htm (last accessed October 30, 2011).

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

Buttressing UNDRIP is the International Labor Organization (ILO)
Conventions No. 107 and 169 on the Rights of Indigenous and Tribal Peoples in
Developing Countries.
45
Enacted in 1957 and 1989, ILO Conventions 107 and 169 had
for decades been the leading international law instruments on native/aboriginal title.
46

Various other supportive declarations and conventions helped lay the foundation
for the UNDRIP. These include the 1992 Rio Declaration from the United Nations
Conference on Environment and Sustainable Development, which also adopted Agenda
21.
47
Both documents address an array of important issues related to environmental justice.

The 1995 Copenhagen Declaration by the World Summit on Social
Development was a watershed in its emphasis on the economic dimensions of
environmental justice. Paragraph Six declares:

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

44
UNDRIP, supra. Previously, International Labor Organization Convention No. 169 was the leading and
most explicit international law instrument specifically focused on the rights of indigenous and tribal
peoples. See http://www.ilo.org/ilolex/convde.pl?169 (last accessed Oct. 30, 2011). The Convention for
the Elimination of All Forms of Racial Discrimination has also been interpreted in some instances as,
among other things, benefiting indigenous peoples and some other local communities. See http://
www2.ohchr.org/english/law/cerd.htm (last accessed Oct. 30, 2011).
45
Convention No. 107 has been ratified by 27 countries; Convention No. 169 has been ratified by 20
countries. See http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm and http://
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 coverage
and are similar. ILO Convention No. 107 assumed the eventual integration of indigenous and tribal
peoples. Convention No. 169 does not.
47
See http://www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml (last accessed Oct. 30, 2011).
48
U.N. Doc A/CON.166/7/Annex, available at http://www.sd-commission.gov.uk/events/apr01/
unpack. (last accessed Oct. 30, 2011).

Two years later, in 1997, the UN General Assembly reiterated the premise
enunciated in Copenhagen as it adopted a program for further implementation of Agenda
21. It stressed anew that Economic development, social development and environmental
protection are interdependent and mutually reinforcing components of sustainable
development. Sustained economic growth is essential to the economic and social
development.
49
The Rio plus ten gathering in Johannesburg in 2002 again reiterated
support for a tripartite approach in its Declaration on Sustainable Development.
50

The concept of environmental justice embraces a special concern for
precariously situated local communities, more commonly referred to as vulnerable
populations. The second United Nations Conference on Human Settlements (Habitat
II) in an internationally negotiated agreement reemphasized the importance of
vulnerability,
51
as have more recent studies examining the linkages between vulnerable

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

populations and climate change.
52
These definitions, as well as increased success by
advocates for indigenous peoples and other local communities, and environmental
justice are evident in many international instruments such as the Convention on
Biodiversity,
53
the Desertification Convention,
54
and the Aarhus Convention.
55
These
instruments reaffirm the vital role of local communities in promoting sustainable
development and environmental justice.
56

This emerging new norm is likewise evident within international environmental
organizations and their affiliates. For example, the World Wildlife Fund (WWF), citing
UNDRIP, has proposed principles for environmental program management that include
a mandate to recognize and respect customary rights to lands, territories and
resources of indigenous and other local communities. The Conservation Initiative on
Human Rights includes WWF and seven other major international environmental
organizations. The conservation principles agreed to include respect for human rights.
Member organizations are committed to make special efforts to avoid harm to those
who are vulnerable to infringements of their rights and to support the protection and
fulfillment of their rights within the scope of our conservation programmes.
57

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

56
Adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4
September 2002; for the discussion, see chap. VIII of the Summit Report. See http://www.un.org/
events/wssd (last accessed Oct. 30, 2011).
57
Jenny Springer, WWF Director, Rights and Livelihoods, Rights Principles and Safeguards in REDD+
- NGO approaches. Paper presented at a RRI Workshop, May 12, 2010, Washington, DC. Supra note 25.
58
Supra note 21. See also Owen Lynch, Concepts and Strategies for Promoting Legal Recognition of Community-
Based Property Rights: Insights from the Philippines and Other Nations [ital], in COMMUNITIES AND
CONSERVATION: HISTORIES AND POLITICS OF COMMUNITY AND CULTURAL RESOURCE
MANAGEMENT, (P.L. Brosius, A.L. Tsing, C. Zerner, eds., 2005); A. White and A. Martin, WHO OWNS THE
WORLDS FORESTS? FOREST TENURE AND PUBLIC FORESTS IN TRANSITION, Forest Trends and
Center for International Environmental Law (2002).

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

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

B. International Court and Tribunal Decisions

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

International Court of Justice (ICJ)

Western Sahara: Advisory Opinion of 16 October 1975

The foremost adjudicator of international law is the International Court
of Justice, based in The Hague, Netherlands. The ICJ Opinion on Western Sahara is
an authoritative rejection of the notion that land occupied by indigenous peoples at
the time European powers asserted sovereignty could be considered legally unoccupied,
or terra nullius.

In this advisory and precedent setting opinion, the ICJ held that the
indigenous nomadic peoples in the Western (Spanish) Sahara had social institutions at
the time of colonization and were entitled to exercise their right to self-determination

based on their social coherence as a people. In addition, the ICJ determined that
ancestral territories inhabited by nomadic peoples are not terra nullius and are not open
to arbitrary state acquisition. This case brought an end to the legitimacy of the colonial
concept of terra nullius. It rejected the invocation of terra nullius to usurp native titles
through occupation of territories already inhabited by indigenous peoples, such as
the peoples of the Western Sahara.
59
The majority stated that:

Whatever differences of opinion there may have been among jurists, the State practice
of the relevant period indicates that territories inhabited by tribes or peoples having
a social and political organization were not regarded as terra nullius. It shows that in
the case of such territories the acquisition of sovereignty was not generally
considered as effected unilaterally through occupation of terra nullius by original
title but through agreements concluded with local rulers.

Inter-American Court of Human Rights
60

Awas Tingni vs. Nicaragua
61

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

59
975 ICJ 12, 37039 (1975), available at http://www.icj-cij.org/docket/
index.php?p1=3&p2=4&code=sa&case=61&k=69 (last accessed Oct. 30, 2011). More recently in 2010 the ICJ
issued an advisory opinion on Kosovo concluding that local indigenous groups have a right in
international law to declare their independence from subjugating neo-colonial states. See http://www.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 de
31 de Agosto de 2001. See http://hrlibrary.ngo.ru/iachr/E/tingni9-6-02.html. See also http://
www.cedha.org.ar/curiae1.html (last accessed Oct. 30, 2011).
62
www.hrcr.org/docs/American_Convention/oashr.html.(last accessed Oct. 30, 2011).

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

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

Moiwana Village v. Suriname
64

On November 29, 1986, soldiers of the National Army of Suriname
surrounded the Maroon village of Moiwana and killed at least 30 people. The many
wounded fled with other survivors, some forced to walk three of four days to safety in
French Guiana. Efforts to investigate the massacre commenced in 1989 by the civilian
police but soon floundered. In August 1990, the police inspector was shot dead and
his body dumped near the office of the then-deputy commander of the military
police. Other police officers assisting the inspector fled the country and were granted
political asylum in the Netherlands.

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

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).

recommended that Suriname investigate the event, prosecute those responsible and
compensate the survivors. It likewise opined that the massacre was a crime against
humanity and violated international law.

On June 15, 2005 the Inter-American Court ruled unanimously that
Suriname had violated the human rights of over 100 members of the village of Moiwana,
including Article 21 on the right to property of the American Convention on Human
Rights
65
and ordered Suriname to redress the violations.

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

Everyone has the right to use land and enjoyment of his property. The
law may subordinate such use and enjoyment to the interest of society;
and,

No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in
the cases and according to the forms established by law.

Citing Article 21 the Court observed that the Moiwana community
members may be considered as the legitimate owners of their traditional land; as a
consequence, they have the right to use and enjoyment of that territory. It therefore
ordered the Government of Suriname to:

adopt such measures are necessary to ensure the property rights of the
Moiwana community in relation to the traditional territories from which
they were expelled, and provide for the members use and enjoyment of
those territories. These measures shall include the creation of an effective
mechanism for the delimitation, demarcation and titling of said traditional
territories.

65
http://www.hrcr.org/docs/American_Convention/oashr.html (last accessed Oct. 30, 2011).

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

Saramaka v. Suriname
66

The Inter-American Court went further in Samarka v. Suriname. Surinames
Maroons are descendents of African slaves who rebelled against French and Dutch
colonial regimes in the Americas. They are not identified as indigenous but are considered
to be tribal, and fall under international law protections offered by the International
Labor Organization (ILO) in Conventions Nos. 107 and 169.
67

One of the largest groups of Maroons is the Saramaka who number around
55,000. About half of the Samaraka live in ancestral areas of Suriname as did their
forebears for over two hundred years. Their society is organized into twelve Los,
also referred to as clans or groups. Each member of the Samaraka community
belongs exclusively to one Lo. The matrilineal Los are the basic unit of group
ownership of land and other natural resources, in which individual and extended
family units have subsidiary rights of use and occupation.

Since the mid 20
th
century the Samaraka have been threatened by outside
interests, including the Government of Suriname. In the 1960s the Dutch colonial
government teamed up with Alcoa to construct a huge hydroelectric dam to provide
energ y for the nearby capitol city of Paramaribo and an Alcoa smelter. Soon after
a new artificial lake covered almost half of the Samarakas ancestral domain and
displaced an estimated 6000 inhabitants.
68

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).

In 1996 logging operations commenced and the Samaraka were prevented by
soldiers from the Suriname army from even accessing their gardens. They were told
that the land now belonged to Chinese loggers who had received official concessions,
including areas granted to the Samaraka by the Dutch in the Treaty of 1762. During
the ensuing years the local communities began to organize and in 2000 filed a petition
with the Inter-American Commission on Human Rights, which in turn requested in
2002 and 2004 that Suriname suspend all logging concessions and mineral exploration.
The de facto injunctions slowed some logging activities but Suriname failed to comply
with substantive remedial measures recommended by the Commission in March 2006,
69
and the Commission referred the case to the Inter-American Court of Human Rights.

The Court ruled in favor of the Samaraka. It concluded that Suriname
violated the rights of the Samaraka under Article 21 of the American Convention
70
by not adopting effective measures to recognize its communal property right to
the lands it has traditionally occupied and used.
71
It ordered Suriname to remove
legal provisions that impede protection of the right to property of the Samaraka
people and adopt, in its domestic legislation, and through effective and fully
informed consultations with the Samaraka people, legislative, administrative and
other measures needed to protected, through special mechanisms, the territory in
which the Samaraka people exercises its right to communal property.

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

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.

Inter-American Commission of Human Rights (IACHR)

Pehuenche and the Friendly Settlement with Chile

A petition was filed before the Inter-American Commission in December 2002
on behalf of indigenous Pehuenche families in Chile. It sought reparations because
the human rights of the Pehuenche people were being violated by the construction of
several dams along the Bio-Bio River. The largest of these dams, the Ralco dam,
would displace 700 Indians, the last group of Mapuche/Pehuenche Indians who
continue their traditional lifestyle on ancestral lands.

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

The Chilean government also committed to implementing several measures
of more general application. The most important commitments were to:

Strengthen national laws that guarantee respect for indigenous rights,
including constitutional reform that would culminate in legal recognition of
Chiles indigenous peoples;

Ratify the International Labour Organisation (ILO) Convention 169 on
indigenous peoples rights; and

Improve and strengthen legal processes for delineating the territory of the
Mapuche/Pehuenche people and ensuring their meaningful participation in official

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 in
Chiles AltoBioBio, mimeo. (2004).

development processes, including the creation of a municipality in the Upper
BoBo

The friendly settlement provides for Pehuenche families to receive
reparations for relinquishing their legal rights to natural resources that will be
flooded by the dams. For the Pehuenche, reparations symbolize the responsibility
of the Chilean government under international law for human rights violations
they have suffered. The families gained recognition of their rights over lands, technical
support to promote agricultural productivity, educational scholarships, and
monetary compensation in the order of US$300,000 per family. In turn, they agreed
to transfer their rights to ancestral lands and to discontinue legal action.

African Commission on Human and Peoples Rights
74

The African Commission on Human and Peoples Rights is tasked to formulate
and lay down principles and rules aimed at solving legal problems.
75
On February
4, 2010 the Commission ruled that the eviction of the Endorois people for tourism
development violated their human rights. The violation of indigenous land rights
over generations, including illegal displacement in Kenya and beyond, was not
totally resolved in the decision.

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

74
On May 27, 2009 the Commission declared Southern Cameroonians a people, the culmination of a six year
struggle against the Republic of Cameroon, See Andrew Maki, Collective Rights but no Independence for
Southern Cameroons, http://hrbrief.org/2010/01/collective-rights-but-no-independence-for-southern-
cameroons-2/ (last accessed Oct. 30, 2011).
75
Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya. See also Indigenous Peoples in Africa: The
Forgotten Peoples?, http://www.achpr.org/english/Special%20Mechanisms/Indegenous/
ACHPR%20WGIP%20Report%20Summary%20version%20ENG.pdf (last accessed Oct. 30, 2011).

Endorois trust, however, had been arbitrarily ended by local officials who then seized
the ancestral property.
76
The Commission condemned the expulsion of the Endorois
people from their ancestral domains near Lake Bogoria National Reserve, Kenya. It is a
precedential victory for indigenous and some other local communities in Africa and beyond.

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

A. 21
st
Century Colonial Legacies of Government Ownership

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

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

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

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

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 Ecuadors
Rainforests [ital], 16 Geo. Intl Envtl. L. Rev. 763 (2004).

by British forestry laws were enacted. This development moved steadily eastward
through India, Burma, Thailand, Cambodia, Vietnam, Malaysia, Indonesia and the
Philippines.
78
By the dawn of the 20
th
century almost all territory in European
colonies was legally owned by the colonial powers. Similar so-called legal
usurpations subsequently swept through East, West and southern Africa.

Until the mid-20
th
century, there was little pretext of notice or legal process.
Millions of human beings, many whose ancestors for generations had maintained and
protected forests, including the carbon within trees, were arbitrarily deemed to be
squatters on colonial government land, regardless of length of occupancy. In many
now politically independent nations there is all too often still no notice or legal process,
let alone legal recognition of ancestral-domain rights.

Nascent, albeit restrictive, on-the-ground indicators of more participatory legal
approaches to forest management were evident in southern Africa and Asia by the late
1970s; they include Indias Joint Forest Management, the Philippines Integrated Social
Forestry and Zimbabwes CAMPFIRE programs.
79

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

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

78
O. LYNCH and K. TALBOTT, BALANCING ACTS: NATIONAL LAW AND COMMUNITY
BASED FOREST MANAGEMENT IN ASIA AND THE PACIFIC (World Resources Institute, 1995).
79
Although providing for a greater degree of local participation and benefit sharing than was previously
allowed, these programs retain state (public) ownership and control. A decision on the
constitutionality of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act of 2006, which would change the legal environment in India, was pending as of May 2010.
80
L. Wiley, Can the continent find solutions to its colonial land legacy?, ITTO Tropical Forests Update, Vol. 19,
No. 2 at 10, Table 1 (2009).

For example, since 1968 eleven African nations have recognized customary
rights as including property rights in their constitutions and/or land laws, all but one
since 1986.
80
A research report in 2008 concluded that The overall trend in law and
policy has been toward an increased recognition of the role that communities play in
forest management and their historical rights to territories. It identified policy and
law developments that Strengthen community tenure rights in eighteen nations,
including Cameroon, China, Brazil, Kenya, Mali and Tanzania.
81

A tropical forest tenure assessment in 2009 reported that 18% of forest land
in 30 tropical forest countries is now privately owned by indigenous peoples and some
other local communities, an increase from 15% in 2002.
82
Taken together, these facts, the
previous discussion of international law and principles, and the following summaries of
national-level legal developments, provide further proof that international law now
mandates legal recognition of native/aboriginal title and other private community-based
property rights (CBPRs). They are multi-facetted examples of the evolution of
international law in favor of environmental justice, including recognition of native/
aboriginal title.
83

Africa

Botswana

The Botswana High Court on December 13, 2006 ruled that more than 1,000
Kalahari Bushmen had been unconstitutionally evicted from their ancestral hunting
grounds and had the right to return. The court ruled that they were wrongly evicted by
the Botswanan government several years earlier. Supporters of the Bushmen - traditional
hunter-gatherers whose proper name is the San - accused the government of evicting
them to exploit diamond and mineral wealth on their reserve.

81
W. Sunderlin, J. Hatcher and M. Liddle. From Exclusion to Ownership? Challenges and Opportunities in
Advancing Forest Tenure Reform, Washington, DC: Rights and Resources Initiative (2008), pp. 26-28.
82
TROPICAL FOREST TENURE ASSESSMENT: TRENDS, CHALLENGES AND
OPPORTUNITIES, at 12-13 (Rights and Resources Initiative, 2009).
83
The following discussion of domestic/national law is solely arranged alphabetically by region, and not
by strength of reasoning or potential importance to international law.

A panel of judges ruled that the San were illegally moved from their ancestral
domain in the Central Kalahari Game Reserve. After a 2-1 ruling, Judge Mpaphi
Phumaphi, who delivered the swing vote, said the government had forced them out of
the reserve by depriving them of their livelihood. In my view, the simultaneous stoppage
of the supply of food rations and the stoppage of hunting licenses is tantamount to
condemning the remaining residents to death by starvation, he said.

The case marks the first time a modern, post-colonial national African court
has recognized the ancestral domain rights of indigenous people. It is also a precedent
setting case linking land rights to cultural sustainability and the right to life.
Implementation of the decision, however, has been problematic.
84

More recently, on July 21, 2010 the High Court crippled its previous decision
and held that the Bushman did not have a right to use an already stabled well on their
traditional land, or excavate a new one. The African Commission on Human and Peoples
Rights was quick to respond on August 10. The Commission urged the Government of
Botswana to embrace the spirit of the 13 December 2006 ruling of the High Court
by allowing Bushmen to access their own water using the pre-existing borehole.
85

South Africa

Richtersveld Community v Alexor Limited v. the Richtersveld Community
86

The Richtersveld community is part of a larger group, the Nama people, who
are descended from Khoikhoi- and San-speaking people. Their ancestral area was

84
See February 2010 Advance Report of the UN Special Rapporteur on Indigenous Rights calling on the
Botwana Government to do more for Botswanas non-dominant indigenous tribes. http://
www.un.org/apps/news/ story.asp?NewsID=33889&Cr+indigenous&Cr1 (last accessed Oct. 30, 2011).
See also http://survivalinternational.org/tribes/bushmen (last accessed Oct. 30, 2011).
85
Press release on the situation facing the Bushmen of the Central Kalahari Game Reserve in Botswana, http:/
/www.achpr.org/english/Press%20Release/press%20release_bushman_botswana.htm (last accessed
Oct. 30, 2011).
86
http://www.lrc.org.za/judgments/149-2004-04-29-richtersveld-judgment-cc (last accessed Oct. 30, 2011).

inhabited long before the first colonists, the Dutch, arrived at the Cape in 1652. In
1847, the British Crown annexed the area including land which would become the
subject of the Richtersveld claim.

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

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

The Land Claims Court rejected these arguments, and the Richtersveld
community appealed to the Supreme Court of Appeal (SCA).
87
The SCA unanimously
overturned all of the critical findings made by the land court. It found that at the time
of annexation, the Richtersveld people had a communal customary law interest whose
source was the traditional laws and customs of the Richtersveld people. The Court
noted the similarity between this customary law interest and aboriginal title.

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

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

Sahara. The Court adopted these principles and found that the Richtersveld peoples
customary law land rights survived annexation. Finally, the Court held that the
Governments failure to recognize the Richtersveld peoples rights in land (on the
ground of insufficient civilization) after diamonds were discovered was discriminatory.
As such, the Richtersveld people were entitled under the Restitution Act to both
restitution and legal recognition of their ancestral domain rights.

The Americas

Belize

On 18 October 2007, the Supreme Court of Belize ruled in Cal v. Attorney
General
88
that the national government must recognize indigenous Mayans customary
tenure to land and refrain from any act that might prejudice their use or enjoyment of
their ancestral domain. The landmark ruling was a victory for indigenous Mayan
communities throughout Belize.

The High Court ordered the government of Belize to determine, demarcate
and provide official documentation of Santa Cruzs and Conejos [two Mayan villages]
title and rights in accordance with Maya customary law and practices. It also ordered
the government to desist from any logging, mining or other resource exploitation
projects on Mayan land. The decision was the first judgment rendered with reference
to the 2007 UN Declaration on the Rights of Indigenous Peoples.

In 2001, the Belize government began giving rights to logging, oil, and hydro-
electric interests on traditional Mayan lands, denying Mayan far mers access to
their ancestral domains. In the decision, the Chief Justice of Belize stated that
British colonial and subsequent acquisition of land in Belize did not abrogate
the Mayan peoples primordial rights to their land.

As such, the Court upheld that the Maya people live, farm, hunt and fish;
collect medicinal plants, construction materials and other forest resources; and engage
in ceremonies and other activities on land within and around their communities; and
that these practices have evolved over centuries from patterns of land use and occupancy
of the Maya people. The Supreme Court found that the Mayans had a complex traditional
set of land tenure regulations. Furthermore, all attempts to divide up the customary
village land into arbitrary-sized parcels are doomed to fail to establish a stable land-tenure
regime because the Mayan lifestyle requires access to a variety of land types in order to
grow and gather all the crops and resources they need to survive in any given year.

The Court also held that Mayan rights to occupy their lands, farm, hunt and
fish pre-date European colonization and remain in force today. The decision noted:

A mere change in sovereignty does not extinguish native title to land.
Extinguishment or rights to or interests in land is not to be lightly
inferred.

Referring to Delgamuukw v British Columbia (see below), the High Court observed
that Indigenous title is now correctly regarded as sui generis. In other words, the very fact
of Original Peoples having inhabited a land over time confers land title rights to them.
It cited the Belizean Constitution and several international legal precedents that affirmed
the existence of indigenous peoples collective rights to their land and other natural resources.

While stating that the DRIP is non-binding, the Court averred that principles
of general international law contained in the declaration should be respected.
Moreover, it noted that the DRIP was adopted by an overwhelming number of
states thus reflecting the growing consensus and the general principles of
international law on indigenous peoples and their lands and resources.

Brazil

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

89
Memorandum to the Katoomba Group by R. Sales. V. Otsubo and P. Frederrighi, Trench, Rossie
Watanbe Advogados associated with Baker and Mackenzie International (mimeo.), November 13, 2008.

exclusive use and sustainable administration of the demarcated lands as well as the
economic benefits that this sustainable use can generate.
89
The 1988 constitution includes a
so-called Indian Chapter that enumerates the nature and extent of indigenous
rights. The constitution for the first time recognized the existence of collective rights
and acknowledged the legitimacy of community-based indigenous autonomy and social
structures.

The Brazilian Constitution states that Land traditionally occupied by Brazilian
Indians are those that they have occupied and permanently possessed and they shall have
the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein (emphasis supplied)
.90

A recent study concluded that these rights extend to carbon in trees located
on Indian land.
91

In 2009 Brazils Supreme Court sided with indigenous peoples in land disputes
in Amazonia that have been called critical for determining the future of an area of
rainforest the size of Western Europe. The decision formally puts the 1.7 million
hectares Raposa Serra do Sol Indigenous Reserve under legal control of indigenous
Amazonians, despite a handful of large-scale farmers who also are expanding in the
northernmost reaches of the Amazon Jungle bordering Venezuela. The decision ordered
all non-indigenous residents (including industrial rice farmers) to vacate the reserve.
92

90
Chapter VIII, Article 231, para. 2. Article 24 of the Indians Statute states that results of natural
resource exploitation shall belong to the Indians. Ibid.
91
Supra note 91.
93
Citing a report by Instituto Socioambiental (http://www.socioambiental.org) at http://www.
internationalrivers.org/blog/glenn-switkes/raposa-serra-do-sol-pyrrhic-victory-indigenous=peoples-
brazil. (last accessed Oct. 30, 2011).

It also imposed nineteen conditions on local indigenous peoples rights to use and
manage their lands that could have negative impacts on their rights in the future.
93

Canada

Delgamuukw v British Columbia
94

In this landmark decision on the nature and scope of aboriginal title, the Supreme
Court of Canada held that absent a valid extinguishment, indigenous people have sui generis,
aboriginal title to the land they exclusively occupied prior to the establishment of British
colonial sovereignty, and aboriginal title is protected by the Constitution of Canada. The
court recognized a special fiduciary duty between the British Crown and aboriginal peoples.
For its part, the Canadian government has the duty to consult in good faith, addressing the
concerns of the peoples whose ancestral domain rights are at issue.

While aboriginal rights in Canada have also been bolstered in recent years by a
number of court decisions, the 1997 Delgamuukw ruling is by far the most significant.
It represents the culmination of a long process of legal empowerment for First Nations.
The decision is significant in that it not only recognizes aboriginal title, it lays out the
means by which the existence of aboriginal title could be proven and recognized,
even through the use of oral histories. Whereas previous courts had discounted the

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 76
96
Delgamuukw, at 36. For analysis see G. Pechlaner and D. Tindall, Changing Contexts:
Environmentalism, Aboriginal Community and Forest Company Joint Ventures, and the Case of
Iisaak, http://courses.forestry.ubc.ca/Portals/35/docs/cons%20503%202006/tindalll/
Pechlaner%20and%20Tindall%20Draft07.doc (last accessed Oct. 30, 2011).

use of oral history in making claims (essentially crippling the ability of some indigenous
groups to raise such claims), the court ruled that the laws of evidence must be
adapted in order that this type of evidence can be accommodated and placed on an
equal footing with the types of historical evidence that courts are familiar with.
95

The Delgamuukw decisions other significant feature is that it provides guidance
for the adjudication and recognition of aboriginal title. Previously it had been acceptable
practice for commercial resource extraction to continue unhindered throughout
ancestral domains while claims were contested in Canadian courts. Pursuant to
Delgamuukw, resource extraction can no longer take place without consideration of
aboriginal rights and title. There is always a duty of consultation and, in most cases,
the duty will be significantly deeper than mere consultation.
96

Major legislative advances concerning vast areas of aboriginal territories in
Canada have also occurred, although there remain many disputes regarding
implementation. These include the Nunavik Inuit Land Claims Agreement of 1993
97
and the Labrador Inuit Land Claims Agreement of 2005.
98

Chile

As discussed above in the section on International Court and Tribunal
Decisions, the Inter-American Commission (IACHR) oblig ed the Chilean
government to negotiate a precedent-setting settlement that will be monitored by
the Commission and involves: 1) a promise to attempt to reform Chiles constitution

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). For
background, analysis and updates of these and other agreements with Canadian First Nations see Land
Claims Agreement Coalition, http://www.landclaimscoalition.ca (last accessed Oct. 30, 2011).
99
See Pehuenche and the Friendly Settlement with Chile in Part I B above.

to secure the protection of indigenous rights; 2) compensation directly to the
displaced families, including land, educational scholarships, and US$350,000 per
extended family; and, 3) the creation of a Municipality whereby the Mapuche/
Pehuenche will have local control over their ancestral domain.
99

Nicaragua

As also discussed above, Awas Tingni v. Nicaragua is a landmark case decided
by an international court with legally binding authority. The Inter-American Court of
Human Rights found a national government in violation of the collective land rights
of an indigenous group within national boundaries. It is an important precedent for
the rights of indigenous peoples in international law, and it remains a precedent-
setting decision within the Inter-American human rights system.

Suriname

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

United States

Johnson vs. MIntosh

For all the atrocities and injustices inflicted on indigenous peoples in what
is now the United States of America, the natives, despite the discovery doctrine
were not deemed to be mere squatters on land owned by the US Government.
Although indigenous rights, including native/aboriginal title were always subject

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.

to extinguishment by the US Congress, in many cases that never occurred. Rather,
under the auspices of the US Supreme Court native/aboriginal title was always
acknowledged to exist. In Johnson vs. MIntosh the US Supreme Court held in
1823 that Native Americans had, at minimum, rights of occupation to their
ancestral domain, although those rights could only be sold to the US Government.
100

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

Asia and the Pacific
102

Australia

Mabo v. Queensland
103

This ground-breaking and globally influential decision was based on findings
of fact made by the Supreme Court of Queensland: that the Murray Islanders had a
strong connection to the islands and regarded the land as theirs. All of the judges,
except one, agreed that:

there was a concept of native title within British common law;

102
Within the past year the Uttar Pradesh state government invoked the 2006 Indian Forest Rights Act and
recognized ownership rights over 3258 acres held by tribal peoples. A. Tripathi, UP tribals get forest land ownership,
THE TIMES OF INDIA, December 22, 2009. A decision on the constitutionality of the act is pending as of
October 2010 in the Supreme Court of India. See also Cambodia Indigenous People NGO Networrk (IPNN)
The Rights of Indigenous Peoples in Cambodia (2010), http://www.elaw.org/node/5349 last accessed Oct.
30, 2011). See generally www.mabonativetitle.com..
103
No. 2 (1992) 175 CLR 1, http://austlii.law.uts.edu.au/au/cases/cth/high_ct/175clr1.html (last accessed
Oct. 30, 2011). See generally www.mabonativetitle.com.

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 the
connection or occupation under traditional laws or customs; and

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

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

The decision was another blow to the long-standing colonial notion of
terra nullius.
104
It recognized that the indigenous peoples of Australia have pre-
existing systems of law and rights. According to the High Court, these customary
nor ms remained in force under the new sovereign, except where specifically
modified or extinguished by legislative or executive action.

The Court purported to achieve all this without altering the traditional
assumption that the Australian land mass was settled. Instead, the rules for a
settled colony were said to be assimilated by the rules for a conquered colony.

The majority in Mabo decided that upon acquisition of sovereignty the Crown
did not acquire an absolute title but a radical title, and radical title is subject to
native title rights where those rights had not been validly extinguished. (Advocates of

104
A Latin expression derived from Roman Law and translated by European colonialists as empty
land and land belonging to no one. See M.F. LINDLEY, THE ACQUISITION AND
GOVERNMENT OF BACKWARD TERRITORY (Longmans, Green & Co. Ltd., 1926).

native title, especially in Africa, are well advised to take note!) In other words, the
court accepted that a modified doctrine of tenure operated in Australia, and that the
law of tenure (as a product of the common law) could co-exist with the law of native
title (as a product of customary laws and traditions). Where there had been a valid
grant of fee simple by the Crown, however, native/aboriginal title would be legally
extinguished according to Australian law.

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

a requirement to make provision for permitted future development of land
affected by native title;

establishing a process for the speedy and efficient determination of issues of
native title.

In response to the Mabo judgment and to potential and subsequent reactions,
the Australian Federal Parliament enacted the Native Title Act of 1993.
105
The law was
amended in 1998 following the 1996 Wik decision.
106
The Act established a statutory
definition of native title and provided a means for establishing a Native Title Tribunal
to determine native title, validate acts of recognition and provide for compensation.

Malaysia

Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor

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). Statutory
pastoral leases under consideration by the court did not confer rights of exclusive possession on the
leaseholders. As such, native title rights can co-exist depending on the terms and nature of a particular
pastoral lease.
107
Malaysia Law Journal (MLJ), Vol. 1 at 418 (1997).
108
MLJ, Vol. 6 at 241 (2001).
109
MLJ, Vol. 2 at 591 (2002).

In 1997 Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor
107
established the
concept of native title in Malaysian law. The decision was quickly followed by two others:
Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors
108
, a case involving the
logging of Iban forest land in Bintulu, Sarawak, and Sagong bin Tasi & Ors v Kerajaan Negeri
Selangor & Ors,
109
a case involving the taking of Temuan land in Sepang in conjunction with
the building of the Kuala Lumpur International Airport. All three cases embraced the
doctrine of native title and took significant steps to extend its boundaries.

In Nor Anak Nyawai, the High Court recognized the indigenous communitys
legal control over its communal forest land and enjoined further logging by a timber
company, the defendant. In Sagong bin Tasi, the High Court recognized native title
owned by the Temuans, an indigenous people of peninsular Malaysia. It determined
that native title included not only usufructory rights described in Adong, but also
ownership of at least a portion of the plaintiffs ancestral domain.

The cases illustrated the markedly different legal obstacles facing the Orang
Asli of the Malay Peninsula and the indigenous peoples of Sarawak and Sabah. In
Nor Anak Nyawai, the decision rested on the High Courts assessment of Sarawaks
extensive history of regulations on land use and whether they served to extinguish
the plaintiffs claim to native title, which they did not.
110

New Zealand

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

110
See Peter Crook, After Adong: The Emerging Doctrine of Native Title in Malaysia [ital], Journal of
Malaysian and Comparative Law, Vol. 32 (2005), [url] (last accessed Oct. 30, 2011). http://
www.commonlii.org/my/journals/JMCL/2005/index.html. See also Borneo Research Institute http:/
/brimas.www1.50megs.com/ (last accessed Oct. 30, 2011).
111
http://www.legislation.govt.nz/act/public/2008/0099/latest/DLM1378405.html.
112
Historic forestry settlement redresses Maori land claims, http://www.rightsandresources.org/
blog.php?id=342. (last accessed Oct. 30, 2011).

a breakthrough in reconciliation. It will transfer ownership of 435,000 acres (176,000
ha) of plantation forest and associated rents from the central government to seven
North Island tribes, which include more than 100,000 people.

Maori lands and forests were once legally protected by the founding Treaty of
Waitangi, signed with European settlers in 1840, but huge tracts of land were later taken for
settlement. The Maori have been pursuing grievance claims since the early 1840s. The
Central North Island Forests Land Collective Settlement Act of 2008,
111
known informally
as the Treelords deal, restores land rights to the Central North Island Forest Iwi Collective,
an organization made up of Maori iwi, or social units. Under the settlement, negotiated by
the Office of Treaty Settlements, all rental and other income from the land will be held in
a newly established trust holding company, whose shareholders are the Maori iwis.
112

The Marlborough Sounds case has recognized the native title aspects of the
New Zealand settlement. The Chief Justice of the New Zealand Court of Appeal
found that Maori rights to the foreshore and seabed had never been clearly extinguished,
and thus may still exist. These rights predate colonization and are not dependant on
rights accrued under the treaty.
113

Papua New Guinea (PNG)

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

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 Concerning
Customary Ownership and the Conservation and Sustainable Development of Forests and other
Biological Resources, Papua New Guinea Conservation Needs Assessment. Boroko: Government of
Papua New Guinea Department of Environment and Conservation (1992).

The PNG government has attempted over the past decades to register, and in
some instances subordinate, customary rights to lands, forests and other natural
resources.
114
In 1998, for example, the government through a legislative act ostensibly
acquired title to land belonging to the Maisin people without their knowledge or
consent. It then leased 38,000 hectares (94,000 acres) in the Collingwood Bay area to
two companies. These companies entered into an agreement with a Malaysian logging
company to clear-cut the forests for the purpose of developing a palm oil plantation.
The Maisin did not learn of these dealings until barges arrived in Collingwood Bay
carrying bulldozers and other logging equipment in June of 1999.

For the Maisin, this all-too-often surreptitious effort in PNG to illegally land grab
customary property rights was stymied in May 2002 when a Judge of the National Court of
PNG ruled that the government had illegally sold to private development and logging
companies property rights to commercially exploit the customary land of the Maisin people.
The court cancelled the Governments leases and issued an order enjoining the companies
from entering the land without the written consent of the local communities. This decision
legally empowered the Maisin to continue protecting their forests as they have for generations.
They own over 200,000 hectares (500,000 acres) and have rejected the use of their ancestral
domain for large-scale industrial logging or agricultural development.
115

Philippines

Cruz vs. Secretary of DENR

The struggle in the Philippines to gain respect for the rights of Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) goes back many decades. The
greatest legal accomplishment, supported by a broad-based civil-society movement,

115
See http://www.elaw.org/node/897 (last accessed Oct. 30, 2011). On May 28, 2010 the PNG
Parliament enacted a new law that would protect corporations exploiting natural resources by prohibiting
litigation related to environmental degradation and landowner abuse, thereby potentially undermining
the indigenous, and typically undocumented, community-based property rights of PNGs local clans. A
case is now pending in PNGs Supreme Court. See J. Hance, Papua New Guinea strips communal land rights
protections, opening door to big business, June 30, 2010, available at http://news.mongaybay.com/2010/
0630-hance_png_amendment.html.
116
Republic Act No. 8371(1997), available at www.humanrights.gov.ph/index.php?categoryid=34.

was enactment of the 1987 Constitution of the Philippine Republic, its first ever
promulgated without colonial or military manipulation. Building on several sections
within the constitution, the Philippine Congress responded in 1997 by enacting the
Indigenous Peoples Rights Act (IPRA).
116

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

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

The Philippine Supreme Court upheld the constitutionality of the IPRA in a
landmark decision in December 2000.
117
The National Commission on Indigenous Peoples
(NCIP) is the government institution responsible for implementation.
118
As of 2010, huge
obstacles remain in terms of legally delineating, documenting and otherwise recognizing
ancestral domains, primarily in terms of adequate funding and political will.

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. Insular
Government, 212 US Reports (1909) Land occupied since time immemorial is presumed to never have
been public.
118
http://www.ncip.gov.ph/ (last accessed Oct. 30, 2011).
73

Conclusion

Throughout the world the legal rights of indigenous peoples and some other
local ancestral communities to native/aboriginal title have steadily been gaining
recognition and strength. This important development is highlighted in this paper and
an array of examples and evidence has been presented.

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

Advocates for legal recognition, meanwhile, have reason to be hopeful. But
there also remains much work to do. As this paper demonstrates, international law is
more supportive of the legal recognition of native/aboriginal title than ever before. In
most locales the on-the-ground global significance of this fact has yet to be established.
INSURANCE THEORY IN POST-MARCOS PHILIPPINES 74

THE JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS: THE
INSURANCE THEORY IN POST-MARCOS PHILIPPINES
*

DANTE M. GATMAYTAN
**

ABSTRACT

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

*
Paper presented at the 2010 Meeting of the International Political Science Association Research
Committee on Comparative Judicial Studies, Judicial Review as Insurance Policy: Horizontal and
Vertical Accountability in Democratic and Transitional States, Bologna, Italy, June 21-23, 2010.
**
Associate Professor, University of the Philippines, College of Law and Lecturer, Ateneo de
Manila University, Department of Political Science; LL.B., University of the Philippines, 1991;
M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996,
dante.gatmaytan@up.edu.ph. I am indebted to Sopfia Guira for the research assistance she provided.

Introduction

In 1986 Corazon Aquino led a peaceful revolution that ended the authoritarian
regime of Ferdinand Marcos sending him to exile in Hawaii. Widely popular and at the
head of a revolutionary government, Aquino suspended the 1973 Constitution and
was free to undertake any program without constraints from Congress, the courts, or
a constitution.
1
She replaced local officials with her own appointees and abolished
the Marcos-dominated legislature. Aquino could have acted by decree and swept aside
the vestiges of authoritarianism or carried out whatever programs she desired. Instead,
she placed limits on her powers: she proclaimed an interim Constitution with a Bill of
Rights which would be in effect until a permanent one could be adopted.
2

Then she appointed a commission to write this new constitution. The Constitutional
Commission empowered the judiciary so it could serve as an effective check on the President.

Why would Aquino limit her own powers when she could have exploited
her popularity to institute far ranging changes in government?

Aquinos decision can be traced to a previous attempt to amend the Constitution.
Marcos attempts at changing the constitution laid the foundations for authoritarian
rule in the Philippines with the blessings of the Supreme Court. Aquino was taking
steps to ensure that the judiciary can review constitutional changes and prevent the
resurgence of authoritarianism.

In this Article, I argue that judicial empowerment in the post-Marcos Philippines
is an application of Ginsburgs insurance theory.
3
While the insurance theory has been
found inapplicable in many countries by recent studies, the Philippines may be the
exemption. In the Philippines, the drafters of the constitution entrenched judicial
review as a form of political insurance to give themselves a forum to challenge legislation
and proposals to amend the Constitution.

1
R. W. Fontaine, The Philippines: After Aquino,19 ASIAN AFFAIRS 170, 172 (1992).
2
C. H. Land & R. Hooley, Aquino Takes Charge, 64 FOREIGN AFFAIRS 1087, 1107 (1986).
3
T. GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003).

Courts and Constitutional Amendments

I argue that the adoption of stronger judicial review powers in the post-Marcos
Philippine Constitution was carried out as a means of protecting the democratic
safeguards adopted by the framers of the 1987 Constitution and strengthening judicial
checks on the Executive to reinforce horizontal accountability. The Philippine case
will show that the insurance policy extends not only to the enactment of legislation
that can have an adverse effect on the politically marginalized groups, but also to
instances where constitutional amendment can have such a harmful effect on democratic
values. The Philippine case is important for another reason. It shows the application
of the insurance theory, not mere conjecture, through a Supreme Court decision.

T he insurance theor y, in other words, was tested and proven when the
Supreme Court exercised its power of judicial review over questions pertaining
to constitutional amendment intended to benefit incumbents.

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

The scholarly interest in unconstitutional constitutional amendments focuses
on the substantive grounds upon which courts can nullify amendments. Scholars
have suggested a number of limitations on the power to amend constitutions
including: amendments that destroy or cripple the values of constitutional
democracy, or contradict natural law and justice; amendments that repeal core
constitutional freedoms or violate core human rights and deny the basis of equality;
amendments that deny legal protections or equal status to some class of people or

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

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

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

The Philippines offers an opportunity to analyze this relationship. In a span
of thirty-three years the Philippine Supreme Court addressed two attempts to amend
the Constitution. In 1973, it sanctioned the changes despite glaring lapses in procedures
in amending the Constitution. The decision allowed Ferdinand Marcos to establish his
authoritarian regime until he was deposed in 1986. In 2006, the Court ended a similar
campaign primarily because of the failure to conform to constitutional procedures. As I
will show here, the latter was the product of a new constitution designed to thwart a repeat
of the 1973 ruling. The post-Marcos Constitution empowered the judiciary to provide
horizontal accountability by serving as a stronger check on the Executive.

Authoritarianism and the Philippine Supreme Court

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

5
Id. at 26-27.
6
Dante Gatmaytan-Magno, Changing Constitutions: Judicial Review and Redemption in the Philippines, 25
UCLA PACIFIC BASIN LAW JOURNAL 1, 4 (2007).

This would have enabled Marcos to stay in power indefinitely or at least as long
as his party controlled Congress.
6
Before the Convention could finish its work, Marcos
placed the country under martial law and then pushed for the adoption of the new
Constitution. However, instead of following the procedures laid down in the old
Constitution, he created Citizens Assemblies in every barrio composed of all citizens
over fifteen years of age. These assemblies were asked to vote on the Constitution,
which was presented without opposition. Under the martial law regime, there was no
free pressand no civil liberties. Marcos opponents and political commentators were
either in detention or exile. These assemblies carried out the adoption of the
Constitution where armed soldiers and policemen were in prominent attendance.
7

The ratification was riddled with defects. The assemblies included minors. No
official ballots were used because voting was done only by a show of hands, which
violated the principle of secrecy. The Commission on Elections did not regulate the
tabulation and counting of the votes. There were even claims that these assemblies
were never convened and that the votes allegedly cast in these meetings were simply
manufactured by the people of Marcos. Marcos also had clandestine meetings with
some members of the Supreme Court even before martial law was declared and in the
weeks before the 1973 Constitution was ratified.
8

Suits questioning the legality of the ratification of the 1973 Constitution were
filed with the Supreme Court. They challenged the Presidents power to create Citizens
Assemblies and also argued that these assemblies did not have the power to approve the
proposed Constitution. It was also argued that the President did not have the power to
proclaim the ratification of the proposed Constitution. Despite the irregularities attending
the use of the Citizens Assemblies, the Supreme Court in Javellana v. Executive Secretary
9
looked the other way. While a majority of the Supreme Court members ruled that the
Constitution was not validly ratified, the Court also ruled that the new Constitution
was already in force, that it had come into effect through other means.
10

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 declare
any act unconstitutional. After six members of the Court concluded that the 1973 Constitution was
not properly ratified, the Court went on to ascertain that the new charter was otherwise in force.
The ten Justices of the Court (there was one vacancy at that time) voted as follows: four Justices
believed the Constitution was in force and two believed that it was not. Four other Justices could

Unable to oppose the President in the early days of martial law, the Justices of
the Supreme Court had removed the judiciary from a position of great institutional
significance in the Philippine polity by restricting its own scope and depth of decision-
making.
11
Long before the end of Marcos rule, the public respect formerly accorded the
Supreme Court, as well as the Courts reputation for independence, had dissipated. By the
time Marcos was deposed in 1986, the Court was regarded by many Filipinos as subservient
to the President, and many believed that the Court had become a pliable instrument of
the presidents will. Even the Supreme Court acknowledged many judicial problems
spawned by extended authoritarian rule which effectively eroded judicial independence and
self-respect
12
that would require time and effort to repair.
13
Javellana marked the collapse
of horizontal accountability and the demise of the integrity of the Supreme Court.
The judiciary had become a tool of authoritarianism and was in serious need of repair.

Ginsburgs Insurance Theory

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

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

because dominant parties are likely to anticipate continued success in post
constitutional elections and, therefore, to prefer majoritarian institutions. If they are
likely to lose elections after the constitution is adopted, they seek to entrench judicial
review as a form of political insuranceto give themselves a forum in which to
challenge the legislature. Judicial review provides a forum of insurance to prospective
electoral losers during the constitutional bargain. The key factor in explaining variation
in the extent of judicial review in constitutional design is the structure of the party
system and the configuration of political forces at the time of constitutional drafting.
14

Ginsburg offers an alternative to Ran Hirschls
15
hegemonic preservation thesis
which suggests that legal reforms are only ever allowed by politicians and their allies in
the judiciary. In Hirschls words:

legal innovators, that is, politicians, representing cultural and economic elites, in
cooperation with the legal elite, determine the timing, extent, and nature of
constitutional reforms. Legal innovations are, in other words, products of the
interplay between hegemonic elites (and their political representatives) and the legal
profession. Political actors representing hegemonic social and economic forces
usually attempt to shape the legal system to suit their interests. To do so
effectively in rule-of-law societies, they must secure the cooperation of the legal
elite to whom the political elite often have close social ties. The changes that emerge
reflect a combination of political and economic preferences and professional
interests. To be sure, demands for constitutional change often emanate from various
groups within the body politic, but if hegemonic political and economic elites,
their parliamentary representatives, and the legal elite do not forecast gain from a
proposed change, the change is likely to be blocked.
16

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

14
TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES (2003).
15
R. Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four
Constitutional Revolutions, 25 LAW AND SOCIAL INQUIRY 91(2000).
16
Id. at 102. A similar theory has been advanced by Jodi Finkel in her study of Argentina and of
Mexico. In both cases, Finkel argues that parties in power are likely to introduce judicial reforms
when the probability of its reelection declines.

influential sociopolitical groups may support the establishment of judicial review
and the empowerment of constitutional courts.

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

In relatively open political settings, judicial empowerment may reflect the
competitiveness of a politys electoral market or governing politicians time
horizons. According to the party alternation model, for example, when a
ruling party expects to win elections repeatedly, the likelihood of an
independent and powerful judiciary is low. When a ruling party has a low
expectation of remaining in power, it is more likely to support a powerful
judiciary to ensure that the next ruling party cannot use the judiciary to achieve
its policy goals. Scholars draw on this insurance logic to explain the variance
in judicial power between Japan and the United States; between different periods
in the late nineteenth-century United States; between three post-authoritarian
Asian countries (South Korea, Mongolia, and Taiwan); between several polities
in Eastern Europe and between new democracies in Southern Europe (Spain
and Portugal); and between two Argentine provinces.
18

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

18
Id. at 1351-1352.
19
J. Ros-Figueroa & A. Pozas-Loyo, Enacting Constitutionalism: The Origins of Independent Judicial
Institutions in Latin America, 43 COMPARATIVE POLITICS 293(2010).

In the case of Brazil, in particular, evidence suggests that an independent
judiciary may actually serve governmental interests. Incumbents can rely on courts to
facilitate pursuit of policies when structural characteristics of the political system create
barriers for policy implementation.
20
Stated otherwise, judicial empowerment is often
designed to improve the incumbents ability to implement their policy choices. The expansion
of judicial authority depends not on the potential results of electoral contests but on
whether electoral winners can extract benefits from independent courts.
21

Hilbink
22
showed that it is not necessarily weak, pessimistic, or insecure
political actors that seek to introduce or strengthen judicial review. Relatively secure
or politically ascendant institutional designers may find good reasons to enhance
judicial power. In his study of Spain and Chile, he showed that strong actors
opted for the establishment of constitutional courts and the expansion of the
judicial role when they wrote new constitutions in the late 1970s. They initiated
judicial empowerment to build a regime that rejected a strong Executive and provide
the basis of a united democratic front against the military.

At the height of their power, authoritarian leaders in Chile enhanced judicial
power at many levels. Such judicial empowerment was logical and attractive to them
not only because of Chiles long tradition of adherence to legal forms, but also because
of their understanding of adjudication as a technical or apolitical function, which
rendered empowered courts integral to their mission of re-founding the Chilean political
system on more rational and unitary grounds.
23

Judicial empowerment in Peru was not fueled by political uncertainty or
potential electoral loss. Rather, according to one study, it can be explained by the
diffusion theory or as a consequence of the spread of the idea of judicial check
on executive and legislative power after the Second World War. It is also explained

20
R. M. Nunes, Politics without Insurance: Democratic Competition and Judicial Reform in Brazil, 42
COMPARATIVE POLITICS 313, 313(2010).
21
Id. at 328.
22
L. Hilbink, The Constituted Nature of Constituents Interests: Historical and Ideational Factors in Judicial
Empowerment,62 POLITICAL RESEARCH QUARTERLY 781(2009).
23
Id. at 782.

as the product of a combination of a plural political environment and reasonable
institutional design which included rules for the appointment of justices and for
declaring laws unconstitutional.
24

A study of judicial reforms in Mexico concluded that it was neither electoral
uncertainty nor imminent electoral defeat that prompted judicial reform in the mid-
1990s. The governing Partido Revolucionario Institucional (PRI) faced a political defeat
after the reform in the year 2000. Judicial reform, however, was passed and implemented
almost simultaneously and shortly after President Ernesto Zedillos inauguration and
not toward the end of his administration. It seemed that in Mexico, these reforms were
carried out to pursue political legitimacy and was launched as a short-term attempt to
secure votes. The project was developed while Ernesto Zedillo was campaigning for the
presidency in a climate that called for improvements to the justice system. The PRI needed
to send a message of change in the 1994 elections when it faced the possibility of losing a
federal election for the first time in more than seventy years. Rather than securing its
interests in the future, the reformers were trying to recover their legitimacy and the
viability of their government by adapting to a democratizing context.
25

24
E. Dargent, Determinants of Judicial Independence: Lessons from Three Cases of Constitutional Courts in
Peru (1982-2007),41 JOURNAL OF LATIN AMERICAN STUDIES 251, 258(2009).
25
S. I. Oseguera, Judicial Reform in Mexico: Political Insurance or the Search for Political Legitimacy?, 62
POLITICAL RESEARCH QUARTERLY 753, 762(2009). Oseguera argues that the insurance policy argument
fails to provide an explanation as to the domestic dynamics motivating reformers. She says that the
insurance theory attributes the power to calculate political fortunes to political elites. Studying cases
in which the researcher already knows that the reformers lost political control after reform does not
mean they could foretell their fate. She also asserts that by focusing only on the present and future
composition of elected branches, analysts may overlook other possible context-based and reform-
content interests of reformers. She claims too that trying to provide a single explanation for the
motivations behind all parts of judicial reforms and all of an actors significant decisions in the
process may lead to limited accounts.

One study concluded that Turkeys Constitutional Court ser ves as an
administrative attach of state elites in overseeing the political arena and transforming
the society. As administrative agents, the ruling elite turn to courts not to safeguard
their immediate interests, but to transform the society by extending the reach of the
state. Shambayati and Kirdis
26
argue that the post-1982 Turkish Constitutional Court
should be conceptualized as an administrative agent assisting the military in
simultaneously regulating the political society and transforming the nation. The military
regime took direct control of the constitution-making process in the 1980s and
appointed a small constituent assembly that excluded anyone with links to political
parties or other organized groups. The membership in the Assembly was limited to
military officers, law professors, and high-level bureaucrats appointed by the junta.
The junta reserved the right to override the Assembly. The drafters of the constitution
were guided by three principles. The 1982 Constitution assumes that the fundamental
purpose of the state is thetransformation of the society. The original preamble stated
that the constitution was prepared with the goal of ensuring that [the Republic of
Turkey] attains the standards of contemporary civilizations, as a full and honorable
member of the world family of nations. The assembly also set out to ensure that the
State would not be controlled by private associations, and to ensure the dominance of
the state over political institutions.
27

Again, my view is that judicial empowerment in post-Marcos Philippines
tweaks the insurance theory slightly. I suggest that in the euphoria that enveloped
the removal of Marcos from power, the framers of the 1987 Constitution promoted
judicial empowerment to create a strong check on the executive branch. The
framers were concerned about a possible reprise of Marcos-era politics and
established more formidable obstacles in the form of stronger provisions on judicial
review and constitutional amendment.

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

26
H. Shambayati& E. Kirdis, In Pursuit of Contemporary Civilization: Judicial Empowerment in Turkey, 62
POLITICAL RESEARCH QUARTERLY 767, 767-769(2009).
27
Id. at 773-774.

enshrined in the Constitution. The framers of the constitution grafted judicial review
into the fundamental law to thwart future attempts at constitutional change and to
ensure horizontal accountability.

Both Ginsburgs and Hirschls views cast doubt on the effectiveness of judicial
review as a mechanism for horizontal accountability. Theoretically, under a liberal democracy
with a system of separation of powers, the judicial branch functions as an effective,
independent barrier against abuses of executive or legislative authority. The judiciary insures
that the other branches exercise their authority within the law and protects the rights of
citizens against the arbitrary exercise of power.
28
Horizontal accountability is possible with
the existence of state agencies that are legally empoweredand actually willing and able to
take actions ranging from routine oversight to criminal sanctions or impeachment in relation
to possibly unlawful actions or omissions by other agents or agencies of the state.
29

When tainted with attempts to preserve political power as Ginsburg and Hirschl
suggest, judicial review becomes ineffective as a horizontal check on political institutions.
The Philippine case, however, will show that judicial empowerment in fact strengthened
horizontal accountability.

28
M. Dodson & D. Jackson, Horizontal Accountability in Transitional Democracies: The Human Rights
Ombudsman in El Salvador and Guatemala, 46 LATIN AMERICAN POLITICS & SOCIETY 1(2004).
29
G. ODonnell, Horizontal Accountability in New Democracies, 9 JOURNAL OF DEMOCRACY 112(1998).

Writing the 1987 Constitution of the Philippines

Ferdinand Marcos fled to Hawaii after attempting to steal an election that
was intended to provide him with a new mandate to helm the Philippines. His
opponent in that election, Corazon Aquino assumed the presidency. Aquino
announced that her government was a revolutionary government, and that she
was taking power in the name of the people. She abolished the National Legislature
and replaced most of the members of the Supreme Court.The reorganized Supreme
Court recognized the Aquino government as de jure, later referring to Aquinos
government as a revolutionary government.
30

Aquino had unparalleled support among the people. Still she had to translate the
peoples hopes and aspirations into the various articles of the Constitution to show that
she was not assuming a dictatorial mode.
31
Aquino appointed a fifty-person commission to
write a new constitution. Aquinos closest advisers selected its membersmostly lawyers
close to the presidential camp. The Commission included two of the leaders of Aquinos
campaign team, four members close to the Presidents family, while ten were members of
the 1971 Constitutional Convention (four places were reserved for Marcoss New Society
Movement and one for the pro-Marcos sect, the Iglesia ni Cristo). The final mix of former
members of Congress, Supreme Court justices, representatives of the Catholic Church
and the business community, guaranteed that the Commission would produce document
that adhered closely to the pre-martial law institutional framework.
32

30
Dante Gatmaytan, Its All the Rage: Popular Uprisings and Philippine Democracy,15 PACIFIC RIM LAW AND
POLICY JOURNAL 1(2006).Aquino decided to discard the 1973 Constitution because of the cloud of
dubious adoption. The decision also had practical consequences for her new administration. If Aquino
retained the 1973 constitution, all officials elected or appointed under its provisions would have been
entitled to keep their offices. These would include members of Marcos KBL party that enjoyed a
majority in the National Assembly who could have stood in the way of any legislative program Aquino
planned. Among the appointed officials were judges with tenure who could have blocked the
confiscation of the ill-gotten wealth of Marcos and his cronies and who could have protected the
Marcos subordinates accused of committing crimes. She would also have to respect the tenure of local
officials from the KBL party who could have impeded her governments efforts to establish its rule
outside the metropolitan area. See Land, 64 FOREIGN AFFAIRS 1087.
31
S. Maisrikrod, Changing Forms of Democracy in Asia? Some Observations on the Thai and Philippine
Constitutions,23 ASIAN STUDIES REVIEW 356, 360-361 (1999).
32
J. Putzel, Survival of an Imperfect Democracy in the Philippines, 6 DEMOCRATIZATION 198, 210 (1999).

The commission reflected the coalition that brought Aquino to powercivil-
society actors working beside the familiar members of traditional political society. Nearly
half of its members reported having participated in mass actions in areas such as land
reform, ethnic conflicts, and gender issues. Now charged with the drafting of a new
constitution, the commission was eager to prevent another Marcos. Their reforms
included term limits and constraints on presidential power to make it more difficult to
declare martial law.
33
The Constitutional Commission convened on June 2, 1986 with
members from various fields and possessing divergent ideological beliefs. In a matter
of months it held public hearings, regional consultations, and spent two months on
floor debates. The commission finished a draft by October 15 and the plebiscite for
the constitutions ratification was later held in February 1987.
34

In the course of its work, the Constitutional Commission displayed a
determination to prevent another Javellanathe Supreme Court decision that sanctioned
Marcos constitutional change. The members of the commission devised a remedy
that would prevent the executive from invoking the political question doctrine in cases
where its actions are questioned. The innovation came in the form of a new provision
that strengthened the judicial review:

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

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

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 regularly
claim that the campaign for the ratification centered more on President Aquinos popularity than on
the merits of the draft charter. See Hernandez, 1988.

Concepcion mentioned Javellana specifically during the Constitutional
Commission debates. When suits were filed to declare the presidential proclamation
declaring that the 1973 Constitution was null and void, the main defense put up by the
government was that the issue was a political question and that the court had no
jurisdiction to entertain the case.

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

Applying the New Constitution

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

Local officials gathered signatures to amend the Constitution and filed a petition
with the Commission on Elections (COMELEC) to schedule a date to allow voters to
vote on the proposed constitutional changes. The COMELEC dismissed the petition,
citing a 1997 decision of the Supreme Court in Santiago v. Commission on Elections.
36
In
Santiago a majority of the Supreme Court concluded that while the Constitution
recognized the right to directly amend the Constitution, the people cannot exercise
the right if Cong ress does not provide for its implementation. The Cour t
permanently enjoined the Commission on Elections from entertaining or taking

35
Santiago 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).

cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation
of the system. The case was then elevated to the Supreme Court.
37

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

One other problem faced by proponents of constitutional change was the fact
that the campaign to amend the Constitution was spearheaded by the government and
not the people themselves. It was President Arroyo herself who asked Congress to
revise the Constitution during her State of the Nation Address in 2005. Local
governments were mobilized to gather signatures for the campaign. The Speaker of
the House had been vocal about his support for a shift to a parliamentary form of
government. The Solicitor General entered his appearance in support of the petition
and against the COMELEC. The Government was funding the campaign to amend
the Constitution. Except for the Senate, the entire government machinery seemed to
have been mobilized to ensure the amendment of the Constitution.

On October 25, 2006, the Supreme Court promulgated its decision in Lambino v.
Commission on Elections.
38
The Court dismissed the petition, although it was a sharply divided
opinion at 8-7. The majority decision said that The Lambino Group miserably failed to
comply with the basic requirements of the Constitution for conducting a peoples initiative.
39

This glaring failure to comply with the Constitutions mandate was sufficient reason,
according to the majority opinion, to dismiss the case.
40

The majority held that the Petition did not comply with the provisions of the
Constitution on initiative and that the proposed constitutional amendment should be
ready and shown to the people before they signed any proposal. Thus, an amendment

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.

may be directly proposed by the people through initiative upon a petition only if the
people sign on a petition that contains the full text of the proposed amendments.
41

The Court also said that initiative violated the Constitution because the proposal
constituted a revision of the Constitution and not a mere amendment. The Court
explained that the framers of the Constitution intended and wrote a clear distinction
between amendment and revision of the Constitution and a peoples initiative
may propose only amendments to the Constitutionbut not revisions.
42

The majority opinion ended with an explanation of its role:

The Constitution, as the fundamental law of the land, deserves the utmost
respect and obedience of all the citizens of this nation. No one can
trivialize the Constitution by cavalierly amending or revising it in blatant
violation of the clearly specified modes of amendment and revision laid
down in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group
of the day. If this Court allows today a cavalier change in the Constitution
outside the constitutionally prescribed modes, tomorrow the new dominant
political group that comes will demand its own set of changes in the same
cavalier and unconstitutional fashion. A revolving-door constitution does not
augur well for the rule of law in this country.
43

The Court said that no amount of signatures can change our Constitution
contrary to the specific modes that the people, in their sovereign capacity, prescribed
when they ratified the Constitution. The allusions to the peoples voice or the peoples
sovereign will, said the Court, could not override the specific modes of changing the
Constitution as prescribed in the Constitution itself. The Court then concluded by saying:

This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the peoples sovereign
will, is the bible of this Court. This Court exists to defend and protect the
Constitution. To allow this constitutionally infirm initiative, propelled by

41
G.R. No. 174153, 505 S.C.R.A. 160, 229 (2006).
42
Id. at 249.
43
Id. at 263-264.

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

The Supreme Court managed to avoid a repeat of Javellana, and two Justices
mentioned the case in their opinions. Chief Justice Panganiban, in his separate
concurring opinion, again demonstrated his sense of history and his determination
not to repeat the errors of his predecessors:

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

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

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

She added that history will judge us on how we resolve this issueshall
we allow the revision of our Constitution, of which we are duty bound to guard
and revere, on the basis of a doubtful peoples initiative?
47

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

44
Id. at 265
45
Id. at 289-90.
46
Id. at 414.
47
Id. at 415.
48
Gatmaytan-Magno, 25 UCLA PACIFIC BASIN LAW JOURNALat 15-16.

Discussion

Ginsburgs theory posited that framers of constitutions who are not likely to
win elections after the adoption of the constitution are inclined to write judicial review
into constitutions to provide a forum where they can protect their interests should
future elections deny them control of the government.

Ginsburgs theory can be applied to the Philippine case, with a slight twist. As
pointed out earlier, the composition of the constitutional commission that drafted
what is now the 1987 Constitution was not based on political affiliations. Many of
those in the commission were part of the anti-Marcos movement, having taken part in
protests against the Marcos regime. They were civil society actors and political allies
determined to prevent a return of authoritarianism in the Philippines. They were partly
responsible for sweeping Aquino into office and were clearly in power. Aquino claimed
that her government was revolutionary.
49
She could have carried out massive reforms
in government and ruled by decree. Instead she opted to bring political stability to the
country by adopting a constitution. Why did the framers take pains to strengthen the
judiciarys powers in the Constitution? Why would the framers create a check on a
revolutionary government that was not constrained by any rules?

The composition of the Constitutional Commission dictated the interests that
the constitution would protect. Having been part of the movement that ousted Marcos
from office, the commissioners were not thinking along party lines. They were not
thinking about the next elections or their chances of winning. Being mainly stakeholders
from outside government, they had no illusions about obtaining power. They envisioned
a future where their role would be largely outside official power and worked to ensure
that politicians would not amend the constitution unchecked. The insurance policy
was applied by the framers to protect the interests of society in general, and not their
own interests. This would explain the constraints on executive power as well as the
provisions reinvigorating the judiciary.

49
The Philippine Supreme Court sustained her position. See discussion in Gatmaytan, 15 PACIFIC
RIM LAW AND POLICY JOURNAL.

The Supreme Court in Lambino demanded strict compliance with the
procedures of the Constitution on constitutional change to prevent dominant
political forces from changing the Constitution according to their whims. This is
precisely why the drafters of the 1987 Constitution wanted to provide the Court
with more powers. The issues raised in Lambino could no longer be called political
questions and the Court had no choice but to examine the attempt to amend the
Constitution. Simply put, the constitutional changes worked the way they were
supposed toit provided a forum for those who did not wield political power to
challenge government action. The Court, now equipped with broader powers of
judicial review, halted the illegal attempts at constitutional change.

In short, the framers of the 1987 Constitution were concerned with protecting
democratic gains and used judicial review to strengthen the judiciary to ensure
horizontal accountability.

We recall that Ginsburgs theory predicted that if framers of the constitution
foresee themselves in power after the constitution is passed, they are likely to design
institutions that will allow them to govern without encumbrance. If they foresee themselves
losing power, they may entrench judicial review as a form of political insurance.

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

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

The result was not only to create a forum were future legislation can be
challenged by weaker political parties. It created a forum to challenge attempts
to amend the Constitution. This forum, based on the Supreme Courts ruling in
Lambino, is not presided over by a neutral arbiter, but a Court that has been
conscripted into the service of protecting the constitution.

Conclusion

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

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

HOW TO SUBMIT
Contributions and inquiries may be sent to phil.lawandsocietyreview@gmail.com.
Manuscripts should be submitted in Microsoft Word or Rich Text format, typed
single-space in 13-point Times New Roman font.

Footnotes should conform to the Harvard Bluebook.

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

The editorial board reserves the right to reject manuscripts or recomemend
alterations. Published manuscripts are entitled to a modest honorarium.

The Judicial Review of Constitutional Amendments

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The Judicial Review of Constitutional Amendments

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