Prof. Dr. Dr. h.c. Hans Köchler
Life Fellow, International Academy for Philosophy
Professor of Philosophy at the University of Innsbruck, Austria
President of the International Progress Organization
Keynote address delivered at the
Annual Meeting of the Hans Koechler Political and Philosophical Society (HKPPS)
The Indigenous Peoples towards Development and Progress
Quezon City, Metro Manila, Philippines, 13 December 2008
I.P.O. Online Publications
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(I) International justice
(a) The absence of a balance of power between states: The present system of hegemony – or unipolar world order – has often meant the imposition of one country’s will (frequently by means of armed force) upon entire peoples and nations.
(b) The conditions created by economic globalization: The implications of a, morally as well as legally, unrestrained and virtually borderless “free market” at the global level – a state of affairs often described as “globality” – are obvious in terms of an infringement upon the economic and social freedom not only of individuals, but of regional and local communities, and in particular indigenous peoples, worldwide. The ongoing global financial crisis is a case in point. It severely impacts on the economic security and daily life of hundreds of millions of people who, because of the global interconnectedness and resulting vulnerability of their national economies, have lost the capability to set the “terms of trade” under which they contribute to the economy.
Since the end of the bipolar world order and the – prematurely declared? – triumph of economic liberalism it has become abundantly clear that to the majority of mankind “globalization” means the lack of economic self-determination – due to the imposition of foreign (economic) interests upon entire communities in the developing world, often with detrimental consequences to the natural environment they are living in. In actual fact, for the underprivileged in the developing world globalization means the continuation of colonization (with exploitation not only of natural resources, but of the people’s work force, and the biggest share of profits often going to foreign “investors”). The lack of economic self-determination and the interference in the use of their natural resources are accompanied by modern forms of cultural imperialism through which, in the logic of globalization, the affected people should be made believe that the economic exploitation they are subjected to is the only viable economic alternative.
(II) The precarious situation of indigenous peoples under the aspects of international justice
(1) The status quo at the global level – “Gap between idea and reality”
The United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007, “solemnly proclaimed” all rights one can dream of for indigenous peoples worldwide; the reality “on the ground,” however, is totally different from the stipulations of the lofty declaration (and not only in the Philippines).
The resolution, inter alia, recalls historic injustices such as colonization and the dispossession of lands; recognizes the indigenous peoples’ rights to their lands and resources, and their right to control developments affecting their lands; affirms, in general, the right to self-determination of all peoples; proclaims that indigenous peoples have the right to autonomy (self-government) in matters relating to their internal and local affairs; and obliges states to prevent, or provide redress for, dispossession of their lands, territories, and resources.
The provisions aimed at empowering indigenous peoples to determine their own fate are detailed and far-reaching. The Declaration obliges states to “consult and cooperate in good faith” with indigenous peoples to obtain their consent on legislative or administrative matters affecting them (Art. 19). It further affirms the indigenous peoples’ right “to determine and develop priorities and strategies for exercising their right to development” (Art. 23); it explicitly states that they have the right to the lands and resources which they have traditionally owned or occupied (Art. 26) and calls for redress and restitution, or equitable compensation, for lands which have been confiscated.
Of particular importance is the stipulation of Art. 30 that touches upon a central aspect of state authority, one that is often mentioned to justify excessive interference into people’s daily life: “Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest [emphasis by the author] or otherwise freely agreed with or requested by the indigenous peoples concerned.” One wonders how this provision is to be applied in the Philippines and how the article’s exception clause (referring to the “public interest”) is to be interpreted in a construed national security context that typically serves as a pretext for these operations.
Other principles affirmed by the resolution are related to the indigenous peoples’ economic rights: Art. 32, Par. 2 stipulates “free and informed consent prior to the approval of any project affecting their lands or territories,” especially in connection with the exploitation of mineral, water and other resources. The resolution further guarantees the indigenous peoples the right to maintain their own juridical systems and customs – a provision that is of particular importance for all kinds of autonomy arrangements, especially under conditions (such as those in the Philippines) that are characterized by a highly centralized power structure.
It is to be noted that the United Nations Declaration states that the rights enumerated in the document are only the minimum standards for the survival, dignity and well-being of the indigenous peoples (Art. 43). One should not be taken away, however, by the Declaration’s affirmation of high ideals and its apparent “enthusiasm” for the cause of the indigenous peoples, since the reservation clause of Art. 46, Par. 1, quite obviously subordinates their rights to the principle of (state) sovereignty in the traditional understanding of the UN Charter. The provision states that nothing in the Declaration may be construed as “authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.”
What are the implications, one has to ask, of this clause for the exercise of the right to self-determination? If the latter is indeed to be subordinated to the norm of state sovereignty, fundamental questions of the philosophy of the state come to mind: who is the “sovereign” in the original sense – is it the state, as an abstract entity, or the people as a collective of individuals (citizens) who have decided to form a state? And what about constitutional changes affecting a state’s status as a sovereign entity and its territorial integrity that may be brought about by a general referendum, i.e. a democratic act of the citizenry? History should have taught us that the territorial composition of a state is not something eternal and that, in democratic polities, constitutions, defining a state’s borders, are the result of the collective will of the citizens – which is subject to constant fluctuations and thus may substantially change over time.
(2) The situation in the Philippines
After this general assessment of the rights and obligations proclaimed by the United Nations Declaration we have to ask: Up to what extent is the political and constitutional system in the Philippines in conformity with the principles and requirements set out in the Declaration? Again, as at the global level, one has to acknowledge that there exists a gap between idea and reality.
(a) The Indigenous Peoples Rights Act of 1997
In a fashion that resembles the formate and approach of the United Nations Declaration, almost all rights imaginable are listed in Republic Act No. 8371 (“The Indigenous Peoples Rights Act of 1997”). The Act specifically deals with the rights related to ancestral domains and territories and includes, inter alia, the affirmation of the right to stay, the right in case of displacement, the right to regulate the entry of migrants, and the right to ownership and redemption. The Act affirms – in the sense of a guiding principle – the “inherent right of ICCs [indigenous cultural communities]/IPs [indigenous peoples] to self-governance and self-determination.” (Chapter IV: “Right to Self-Governance and Empowerment,” Sec. 13)
In terms of constitutional law and its relationship to international norms and conventions, one basic question can not be avoided or dismissed as a mere “philosophical” concern: what indeed does a “right to self-determination” (apart from the right to self-governance) mean if one particular option – as a possible outcome of negotiations – is excluded from the outset?
In addition to the fundamental questions that are related to how indigenous peoples determine their own fate and defend their rights vis-à-vis the central state, Section 22 of Republic Act No. 8371 affirms the “right to special protection and security in periods of armed conflict,” specifically obliging the state to observe the standards of the Fourth Geneva Convention of 1949 (Geneva Convention Relative to the Protection of Civilian Persons in Time of War). In view of the ongoing armed confrontations on the territory of the Republic of the Philippines one wonders how this particular provision has been implemented since the promulgation of the Act in 1997 or whether the resulting obligations, on the part of the government, have been honoured at all?
The main operative provision of the Indigenous Peoples Rights Act relates to the establishment of a National Commission of Indigenous Peoples (NCIP) with a vast and very ambitious mandate. Section 40 defines it as “an independent agency under the Office of the President.”
The obvious question for someone observing the ongoing disputes and conflicts under an international perspective is again related to implementation: up to what extent has the Commission fulfilled its mandate in regard to the delineation and recognition of ancestral domains, the basic issue with which most other issues are connected? In this context, it is worthy to note that the Act upholds the principle of “self-delineation” in the identification of ancestral domains.
Questions of enforcement also come to mind in connection with the provision of Section 72 according to which “unlawful intrusion upon any ancestral lands or domains … shall be punished in accordance with the customary laws of the ICCs / IPs concerned.” Has this obligation been honored by the government – so that the inalienable right of the indigenous peoples to own their land and control the use of its resources, affirmed in such great detail and emphasis in Republic Act No. 8371, is indeed properly respected by powerful economic pressure groups, domestic as well as international?
(b) The Memorandum of Agreement (MoA) on Ancestral Domain
A “Memorandum of Agreement on Ancestral Domain between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF)” (MoA) was to be signed on 5 August 2008 in Kuala Lumpur, Malaysia. It was meant to be a further step towards a “comprehensive compact” on a peaceful settlement of the long-time disputes between the GRP and the peoples of the Southern Philippines. The text of the Memorandum basically enshrines the principles set out in Republic Act No. 8371 concerning self-determination and ancestral domain for the people of Mindanao and the adjacent islands.
Regrettably, the aborted signing of the agreement – due to a temporary restraining order of the Supreme Court of the Philippines, issued on the very eve of the signing ceremony – has also undermined the Indigenous Peoples Rights Act of 1997. After the Supreme Court’s final decision of 14 October 2008, declaring the MoA “contrary to law and the Constitution,” one cannot avoid the question as to why Republic Act No. 8371 was not declared unconstitutional at the very outset (in view of the Act’s affirming the “inherent right” of self-determination)?
According to the (unsigned) Memorandum of Agreement, ownership of the homeland is “vested exclusively” in the Bangsamoro people “by virtue of their prior rights of occupation.” This essentially means that the right to self-governance is derived from ancestral territoriality. The agreement on the creation of a Bangsamoro Juridical Entity (BJE) logically follows from this fundamental principle.
It is also to be acknowledged that the MoA defines the term “Bangsamoro” in a non-ethnic and non-denominational sense. According to the MoA, Bangsamoros are not only the Muslims, but “those who are natives or original inhabitants of Mindanao and its adjacent islands.” (Concepts and Principles, Art. 1)
In the sense of a general principle, the BJE is “empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources” within the Bangsamoro homeland. (Resources, Art. 1) However, as in the United Nations Declaration on the Rights of Indigenous Peoples, the devil is in the details: in this particular case, the problem lies in the reservations and exception clauses: (a) Jurisdiction over the exploitation of natural resources is vested in the BJE except “in times of national emergency, when the public interest so requires.” (Resources, Art. 5) This opens the door to arbitrary action by the central government since it is the latter that will define the criteria for a “national emergency.” (b) Forest concessions, timber licenses, mining concessions, etc. granted by the GRP before the establishment of the BJE “shall continue to operate” unless otherwise expired, reviewed, or cancelled by the BJE. (Resources, Art. 9)
The MoA furthermore sets out two important principles, namely (1) of “joint jurisdiction” between the Government of the Republic of the Philippines (GRP) and the BJE over territorial waters (beyond the BJE internal waters) and the sharing of minerals in those waters; and (2) of “wealth sharing” between the GRP and the BJE (at the ratio of 75% / 25% in favor of the BJE).
In Art. 1 of the final Chapter on Governance the MoA further outlines out the political and constitutional principles on which the “recognition and peaceful resolution of the conflict” is to be based. Art. 2 affirms the “freedom of choice of the indigenous peoples,” and Art. 4 states the principles of association and shared authority between the BJE and the GRP. In a ruling, referred to earlier, that has further complicated, even seriously undermined, the peace efforts in the Philippines, the very notion of an associative relationship has been determined as “unconstitutional” by the Supreme Court of the Philippines.
The MoA further states that the BJE is free to enter into trade agreements with foreign countries and to participate in international meetings (such as those of ASEAN and specialized agencies of the United Nations). (Resources, Art. 4, lit. b) The negotiating parties also agree that the BJE shall be empowered to build its own institutions including, inter alia, civil service, economy, finance, education, internal security, and the judicial system. (Governance, Art. 8) All these provisions are made with a comprehensive peace compact in view.
Whether these principles and arrangements are characteristic of a sovereign entity or simply describe the mechanisms of power-sharing under a federal constitution, is the crucial question one cannot avoid in view of the Supreme Court’s ruling of 14 October 2008.
A quick look at examples in other countries may help to clarify the matter and alleviate possible concerns about the compatibility of such provisions with a state’s constitution in so far as the principle of national sovereignty is concerned. In a number of European states, federal power-sharing arrangements go along quite well with the assertion of state sovereignty. Neither the Swiss Cantons nor the German Länder – with the far-reaching competencies vested in them – are in any way perceived as undermining the international status of the state (Confoederatio Helvetica, Federal Republic of Germany) they belong to. In spite of its name, the Freistaat Bayern (Free State of Bavaria) is not considered as a sovereign entity in terms of international law. Similarly, the Autonome Provinz Bozen (Autonomous Province of Bolzano or South Tyrol), notwithstanding its far-reaching governmental powers in the fields of economy and finance, is part of the Republic of Italy; or Scotland has practiced an independent judicial system – since the year 1707 – within the framework of the United Kingdom of Great Britain and Northern Ireland. These are only a few examples from the European “constitutional experience” which document that national constitutions can be drafted in such a way that local or regional self-rule is not perceived as contradicting state sovereignty.
Furthermore, one has to acknowledge that no constitution is written for eternity. In principle, any democratic constitution, being the result of the popular will at a certain point in time, can be amended through another democratic act and according to that constitution’s relevant provisions.
The constitutional history of many states teaches us that the devolution of certain areas of governmental authority – specific legislative, executive and judicial competencies – from the central government to a province, state or region does not automatically mean the abrogation of sovereignty on the part of the respective state (or the creation of a new sovereign state).
Getting back to the negotiating process in the Philippines that led to the drafting of the Memorandum of Agreement on Ancestral Domain, and considering the precarious situation in which the people of Mindanao have to live as a consequence of so many failed or aborted peace initiatives, one has to ask whether it is at all possible that the President of the country has not had a look at the draft MoA which had – over a period of several years – been negotiated under her authority (as far as the Government of the Republic of the Philippines as negotiating partner of the MILF is concerned)?
The abortion of the signing of the long-awaited MoA on Ancestral Domain has led to profound disillusionment on all sides – and to a total lack of comprehension internationally. Frankly speaking, to a neutral outside observer it is totally incomprehensible that two parties to a dispute would negotiate that dispute’s settlement for several years, announce a consensus and set the exact date for the signing of the agreement – only to have it cancelled on the eve of the signing ceremony due to a temporary restraining order of the country’s Supreme Court, and with that country’s President subsequently distancing herself from the Agreement, claiming total ignorance of its clauses and provisions.
It should not surprise us if these tactics are not taken seriously, whether at home or abroad. In our view, such erratic behavior can only be interpreted as a sign of political instability and of a profound lack of confidence in and credibility of what has been referred to by that government as “comprehensive peace negotiations” or “peace process.”
“Many years of process, but still no peace”: these desperate words used to describe the state of Israeli-Palestinian negotiations should not also become the motto for the “peace process” in the Philippines, in spite of recent setbacks and discouraging developments. The 18 million citizens of the Philippines who belong to indigenous peoples must be empowered – without any further delay – with all those rights that have been solemnly proclaimed in the UN General Assembly’s Declaration of 2007 and in the Indigenous Peoples Rights Act of 1997.
The rights to ancestral domain, self-government, social justice, and cultural integrity of the indigenous peoples are inalienable and, thus, non-negotiable. What is to be negotiated are the constitutional and administrative arrangements for the implementation of those rights. Apart from the constitutional domain and the rule of law, the respect of those rights has also significant implications for the greater “dialogue of civilizations” – domestically as well as internationally – which can only flourish on the basis of cultural diversity.
Whether central governments like it or not, indigenous rights are also an issue of self-determination as plainly set out in Art. 3 of the UN Declaration. The indigenous peoples cannot forever be held hostage of the status quo that is almost always in favour of powerful central governments. Not only the possession of their land and the use of their natural resources, but the general organization of their public affairs – i.e. of the political and socio-cultural system under which they live – must be the prerogative of the indigenous peoples.
The “comprehensive peace compact” which the Government of the Republic of the Philippines has said it is committed to achieve makes it imperative that those rights are accepted as basis – fundamentum inconcussum – of all negotiations. Any approach that denies those rights is tantamount to a dangerous denial of reality; such an attitude will only perpetuate the conflict and may eventually lead to disaster – a development in which the viability and survival of the entire polity of the Philippines would be at stake. For the sake of all peoples of the Philippines, this outcome is to be averted!
 For details see Hans Köchler, The Principles of International Law and Human Rights. The Compatibility of Two Normative Systems. (Studies in International Relations, V.) Vienna: International Progress Organization, 1981.
 Par. 2 of the Preamble to the United Nations Charter.
 General Assembly, sixty-first session, agenda item 68, 107th plenary meeting, 13 September 2007, A/RES/61/295.
 It goes without saying that, in my assessment of the situation, I depend on the documents and empirical data insofar as they are available to me. A further analysis would require detailed field studies which I was not in a position to undertake prior to this conference.
 Republic Act No. 8371: An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities / Indigenous People, Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefore, and for Other Purposes, approved on 29 October 1997.
 It is to be noted that the decision was made by a narrow margin of 8-7 votes. Six of the judges who voted against wrote dissenting opinions.
 Chapter Concepts and Principles, Art. 2: “Ownership of the homeland is exclusively vested in them [the Bangsamoro people / H.K.] by virtue of their prior rights of occupation that had inherited in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.”
 Chapter Territory, Art. 2, lit. g and h.
 E.g. Chapter Resources, Art. 6.
 See the News Release issued by the Supreme Court of the Philippines: SC Declares MOA-AD Unconstitutional, 14 October 2008: “The Court stressed that the MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE (Bangsamoro Juridical Entity), are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence, it said.”
 Cf. Hans Köchler, “The Dialogue of Civilizations: Philosophical Basis, Current State and Prospects,” in: Asia Europe Journal, Vol. 1, No. 3 (August 2003), pp. 315-320.
 See also the formulation in Art. 10 of the Chapter Governance of the MoA on Ancestral Domain.