Overcoming Discrimination:
Indigenous Peoples and the Rule of Law In Latin America: Do They Have a Chance?

Chair: Rebecca Cook, University of Toronto
Paper: Jorge Dandler, International Labor Organization, Lima, Peru
Discussant: Shelton H. Davis, World Bank

The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996

There have been a number of problems which have historically hampered the recognition of indigenous peoples' rights. Firstly, although the constitutions in Latin America formally guarantee the principle of non-discrimination and fundamental rights, indigenous peoples' human rights are frequently violated in practice since the basic constitutional principles recognizing their existence and permanence have, until recently, been deficient or absent. Secondly, in spite of considerable progress, the collective rights of indigenous peoples have been systematically violated. Thirdly, the dominant goal in Latin America was to create a homogenous, integrated society, without indigenous people. Fourthly, development projects generally have not been able to transcend an integrationist/patronizing approach. Finally, the benevolent ideology in much national legislation and many constitutions gave rise to elaborate mechanisms of tutelage that denied indigenous individuals and their communities effective participation as well as the legal security necessary to exercise their rights of citizenship and defend their cultural identity and livelihood.

The following changes/reforms have taken place: Firstly, the ILO adopted Convention 169 in 1989. Secondly, the Working Group on Indigenous Populations (a Sub-Commission on the Prevention of Discrimination of Minorities) has been preparing a draft Universal Declaration on the Rights of Indigenous Peoples. Thirdly, efforts have been made towards the adoption of an instrument on the rights of indigenous peoples in the Inter-American system. Fourthly, provisions regarding the rights of indigenous peoples have been adopted into international agreements. Also, guidelines and directive policies have been adopted. The common concern of these agreements and guidelines is to provide indigenous peoples with equal opportunities to influence and benefit from development. It should also serve as a reminder to governments of their own commitments to indigenous peoples.

Recent Constitutional and Legislative Changes

The evolving normative developments show the following trends: The use of the term "indigenous peoples"; the recognition that societies are multicultural or pluricultural (the Argentinean and Paraguayan constitutions go even further, recognizing that today's indigenous peoples are descendants of populations that existed prior to the founding of the state or nation; the Brazilian constitution recognizes the rights of Indians as prior to law); all constitutions refer to collective land rights; most refer to the right of indigenous peoples to education in their own languages (the promotion of bilingual and bicultural languages); a few recognize indigenous languages as official languages where predominant; most recognize customary law and the role of traditional authorities; some go as far as recognizing the latter as first instances of the system of administration of justice; the Colombian constitution provides for direct representation of two senators; most recognize various forms of local administration or autonomy; the Nicaraguan constitution goes as far as a recognition of regional autonomy.

These changes are often the result of hard fought battles. There is a shift away from a top-down and benevolent approach to a conception recognizing the rights inherent to indigenous peoples or derived from their existence. Integration is no longer a basic underpinning. Cultural diversity has become a reality. Although progress has been made in constitutional law, there is little reflection of this change in derived legislation or regulatory laws.

Guatemala

An agreement on the Identity and Rights of Indigenous Peoples resulted from negotiations between the Unidad Revolucionaria Nacional Guatemalteca (URNG) and the government. This agreement is a remarkable document which covers a wide range of issues and commitments. The United Nations played an important role in the process.

Mexico

The Chiapas rebellion is a movement of indigenous people who want a hearing with all of Mexican society and a negotiated settlement with federal and state governments. The agreement reached is a result of negotiations between the government and indigenous peoples (unlike Guatemala, where indigenous people did not directly participate in negotiations). If effectively implemented, it will point to a new relationshipbetween the indigenous peoples and the state.

Bolivia

The examples of Guatemala and Mexico raise the question as to whether it takes violence to make a cause heard. Bolivia provides an alternative. There, in 1991, thousands of indigenous people marched to press the government for the recognition of the Chiamanes forest area as temtono indegena. The march gained national and international attention, creating a broader awareness of the plight of the indigenous peoples. As a result, a number of changes took place in the constitution. Indigenous groups in Bolivia have fought hard to have their rights included in new land, forestry, and mineral exploration laws.

Conclusion

Latin America has a unique opportunity to peacefully construct multi-ethnic societies and avoid the inter-ethnic conflict that some of the other nations in the world have been too blind to prevent.

 

Discussant's Comments (Shelton H. Davis)

The Reform Process

The road to reform has not been without obstacles-at both national and international levels. Most of the constitutional reforms regarding indigenous people in Latin America have taken place on the level of substantive or normative law, not in the areas of legal process or administration.

The differences between written law and the social realities in many Latin American countries are noteworthy. Anthropologists have begun to realize that the legal system is pluralistic in nature and that, in many villages and at the local level, traditional law persists. Traditional law, however, remains subject to national law and is greatly misunderstood by judges and attorneys. Despite these conditions, customary or traditional legal regimes appear to be quite strong in many Latin American countries. These systems function differently from but nevertheless in tandem with national legal systems.

The method employed by traditional legal systems is that of reconciliation. An attempt is made to reestablish social peace. These traditional systems differ fundamentally from the Eurocentric judicial systems based on written documents, legal professionals, adversarial procedures, and decisions in which there are clear winners and losers.

A trend in Latin America is to incorporate some of the principles of the traditional systems into national reform programs, especially at the local level or in courts of first instance; for example, in Peru there has been widespread promotion of the use of Justices of the Peace (non-lawyers). However, the picture is quite different in the higher courts. If even limited funds directed at judicial reform were to go to the rural Ievel, a fundamental impact could be made.

International Bodies

Given the current situation, in which grievances are not adequately addressed at the local level, we could expect more attempts to be made by indigenous organizations to bring their grievances to international bodies such as the UN Commission on Human Rights and the Inter-American Commission on Human Rights.

Conclusion

In summary, many positive steps have been taken. However, a great deal needs to be done before one can say that the "rule of law" reigns between nation states and indigenous peoples in Latin America. More attention needs to be focused on procedural aspects of the law if indigenous peoples and the rule of law are truly to have a chance in Latin America.

 

Floor Discussion

Dandler emphasized the importance of indigenous communities exercising traditional values and ways of dealing with conflicts. We must recognize that indigenous peoples have been able to solve conflicts without resorting to the courts. In most constitutions that recognize customary law, there is a proviso-"when compatible with national legislation or fundamental rights established internationally." The judiciary lacks the experience to deal with matters "when they are compatible." Furthermore, university law faculties look down upon customary law.

Roger Plant noted a dichotomy in the presentations. On the one hand, there is a tendency to emphasize indigenous control, and on the other, a tendency to emphasize the issue of access to justice. He identified a tension between indigenous rights and self-determination. He also distinguished between two categories of indigenous people: those who have long been integrated, and those who have had little contact with national life. The latter still require protection, while the former face problems related to multi-ethnicity within the state. The question is whether or not these situations require different normative approaches. He also wished to know whether the discussion is about indigenous values or indigenous rights. Dandler remarked that indigenous people have a universal message regarding their claims: Firstly, the right to be regarded as enduring and permanent. Secondly, they claim the right to participate and be consulted. Thirdly, lands are a precondition for existence.

Rachel Sieder added that it would be easier to grant rights to those who were separated from national life. She wanted to know what the role of the international community should be when there is conflict between national laws and indigenous rights to customary law. Dandler noted the important role which the international community can play. Measures are more easily adopted at the international level than at the national level. Also, the international community has a great role to play in the monitoring of indigenous rights.

Emilio García Méndez (UNICEF) noted that bilingualism and translations could appear as compensatory measures. He wanted to hear more about the politics surrounding the problem. Dandler, in reply, said that there is a definite political platform-indigenous peoples want to build a new relationship with society and the state. The state denies their existence and looks upon them as an obstacle to development. Indigenous people are conveying a clear political message. Davis stated that for indigenous peoples there is no conflict between identity and citizenship. Protective legislation is needed with regard to language. The use of indigenous languages in the courts is a sham. The issue of self-determination concerns the issue of governance. This discussion should be embedded in decentralization. One of the areas of concern for indigenous groups is their sacred sites. The protection of these sites poses a challenge. Because of the lack of access to justice on the national level, indigenous people will look to international mechanisms, which include the Inter-American system and, increasingly, the UN courts.

Ligia Bolívar, while seeing the value of the institution of Justice of the Peace, wondered if there is not an overestimation thereof. She wondered if it does not encourage second-class justice for second-class citizens. Desmond Harris was struck by the absence of discussion of the concept of violence in the generation of new legal norms in indigenous communities. Paradoxically, the source of this new conception of law seems to be the breakdown of the rule of law and legality in the countryside and marginalized communities. This shift seems to result in a direct challenge to our notion of the state.

Paul Chevigny stated that all indigenous groups view themselves as indigenous, but not all are really traditional-some of these groups have become highly hispanisized. There is a danger that traditional law could be used as a means by which indigenous people can be regularized. Davis, drawing from the Guatemalan experience, called for the reestablishment at the local level of a sense of shared tradition and shared moral and political order. Without this it is difficult to maintain any form of social cohesion at the local level.

In conclusion, Dandler reiterated the plea of the indigenous people. They want to participate and be heard. They do not want to be encapsulated and compartmentalized. They are saying to the judicial system that what is needed is a systematic integration of indigenous rights-a social-contract democracy.