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Reason and Fairness

Constituting Justice in Europe, from Medieval Canon Law to ECHR

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Ulrike Müßig

Throughout Europe, the exercise of justice rests on judicial independence by impartiality. In Reason and Fairness Ulrike Müßig reveals the combination of ordinary judicial competences with procedural rationality, together with the complementarity of procedural and substantive justice, as the foundation for the ‘rule of law’ in court constitution, far earlier than the advent of liberal constitutionalism. The ECHR fair trial guarantee reads as the historically-grown consensus of the functional judicial independence. Both before historical and contemporary courts, justice is done and seen to be done by means of judgements, whose legal requirements combine the equation of ‘fair’ and ‘legal’ with that of ‘legal’ and ‘rational.’ This legal determinability of the judge’s fair attitude amounts to the specific (rational) European idea of justice.

Regaining Paradise Lost: Indigenous Land Rights and Tourism

Using the UNGPs on Business and Human Rights in Mainstreaming Indigenous Land Rights in the Tourism Industry

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Mary Kristerie A. Baleva

Mary Kristerie A. Baleva’s Regaining Paradise Lost: Indigenous Land Rights and Tourism uses the UN Guiding Principles on Business and Human Rights as its overarching legal framework to analyze the intersections of indigenous land rights and the tourism industry. Drawing from treatises, treaties, and case law, it traces the development of indigenous rights discourse from the Age of Discovery to the adoption of the UN Declaration on the Rights of Indigenous Peoples. The book highlights the Philippines, home to a rich diversity of indigenous peoples, and a country that considers tourism as an important contributor to economic development. It chronicles the Ati Community’s 15-year struggle for recognition of their ancestral domains in Boracay Island, the region’s premiere beach destination.

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Mary Kristerie A. Baleva

Chapter Six is a case study on the legal, social, and political dynamics that characterized the Ati Indigenous Community’s application for State recognition of their native title to their ancestral domains in Boracay Island, the prime tourist destination in the Philippines. It contextualizes the rights guaranteed by the ipra as experienced by the Ati of Boracay, their 15-year struggle to exert these rights, and the challenges they continue to face despite the issuance of a Certificate of Ancestral Domain Title in their favor.

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Mary Kristerie A. Baleva

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Mary Kristerie A. Baleva

Colonization irrevocably altered the course of nations. It shaped Euro-centric international law, which, during its inception, was largely both an enabler and justification for the subjugation of indigenous peoples, and the confiscation of their territories and resources. This chapter traces the developments and regressions in indigenous rights discourse, from the Age of Discovery, to attempts at remediation of historic injustice through predominantly integrationist policies, and until the more recent adoption of the International Labour Organization’s Indigenous and Tribal Peoples’ Convention in 1989, and the UN Declaration on the Rights of Indigenous Peoples in 2007. It expounds on individual and collective rights, the broad coverage and import of self-determination, and indigenous peoples’ free, prior, and informed consent as, if not a right unto itself, an important component of these rights.

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Mary Kristerie A. Baleva

This chapter presents cases decided by the Supreme Court of the Philippines to demonstrate the development of judicial appreciation of the State’s international human rights obligations under the auspices of the 1987 Constitution. Compared with the earlier iterations of the Philippines’ organic law, the 1987 Constitution contains more substantive provisions on human rights in general, and in particular, respect for the rights of “indigenous cultural communities” to their culture and ancestral lands. These provisions, as well as the Cariño doctrine, served as the foundation of the Indigenous Peoples Rights Act of 1997, which updates reference to indigenous cultural communities to include indigenous peoples (ICCs/IPs), in keeping with the developments in international indigenous rights discourse. This chapter expounds on the bundle of indigenous rights recognized under the ipra, and the right to free, prior, and informed consent, as a means of preventing development aggression in ancestral domains and lands.

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Mary Kristerie A. Baleva

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Mary Kristerie A. Baleva

Tourism, one of the most lucrative industries around the globe, is in a constant quest to discover and develop more enticing and exotic locations, many of which are located in indigenous territories. This chapter focused on tourism and indigenous peoples, specifically the industry’s impacts on indigenous land rights. Moreover, it analyzes the role of the United Nations World Tourism Organization (unwto) in the promotion of human rights, and the remediation of grievances through the Global Code of Ethics for Tourism (gcet). It also briefly presents the unwto Framework Convention on Tourism Ethics, and its Optional Protocol. Finally, this chapter elucidates on the Philippine Tourism Act of 2009, with the ungp s as the overarching analytical legal framework.