**3. Self-determination into Mapuche's claims: an oxymoron?**

### **3.1 The international human rights law as a paradigm of modernity/coloniality**

In addition to the individual perspective, the modern theory of human rights is inexorably determined by questions relating to the national sovereignty of States. However, in the case of indigenous peoples, and their right to self-determination, these issues are often ignored. And although the "Indigenous Law" has been outlined, during the last decades, as an autonomous discipline within the IHRL, it is pertinent to remember that the concern for situation of them, arose due to the terrible working conditions in which they was, and not for questions of sovereignty. It was the International Labor Organization (ILO) that in 1921 began to show concern and to study —from the labor perspective, not the political perspective— the situation of indigenous workers. This is confirmed by one of the main antecedents to the "right to self-determination," included in ILO Convention No. 169, that it does not pretend to be a basis for declaring the indigenous self-government.

The human rights are often understood as a set of faculties and institutions that, in each historical moment, specify the requirements of human dignity, freedom, and equality, which must be positively recognized by the legal systems legal issues at national and international levels [29]. Paraphrasing to Costas Douzinas, we must ask ourselves the question: Are indigenous people "completely" human or, in contrast, are they only "partially" human, with very limited rights? This question is not trivial, especially assuming that the concept of "humanity" was defined by Eurocentric modernity, heir to that Athenian-Roman citizenship: masculine, white, plutocratic, heterosexual, and so on. And of course, the barbarians —and among them the indigenous— have gradually been integrating ourselves into this "humanity," despite the fact that this membership continues to be an imperial arbitrariness, decided from Europe or the United States [30].

Now, I will do analyze the classic criticisms against human rights. However, in a lot of them it is possible to discover arguments that would allow us to move toward the "decolonization" [31] of indigenous law, demonstrating why it is an oxymoron that indigenous peoples rely on the same colonial grammar to achieve their political self-determination.

Considering the historicist critique, it is already possible to understand the refusal of western States—and, in our case, Chile—to respond to the main indigenous claims. In the other hand, Karl Marx did not consider this demand in his analyses; however, a rereading of their texts would predict that indigenous claims in the key of human rights, not in terms of subjective rights as such—can never be satisfied, because the content and the positivization of these rights depend totally on the convenience of the bourgeoisie and its benefit, in the context of a neoliberal and highly individualistic economy. Even assuming that the reformulation of the principle of equality has made it possible to improve the relationship between the bourgeoisie and the indigenous peoples, we must not lose sight of the fact that this reformulation aimed at "equality of exploitation of the labor force" [32, 33]. However, it should be noted that both Marxism and capitalism constitute nemesis of the indigenous worldview, since both depend on the exploitation of the land and its natural resources [34].

It has been pointed out that human rights are the hallmark of modernity, an ideal habitat for the concretion of the liberal Kantian myth that speaks of a fully autonomous, invulnerable, cosmopolitan, multicultural, and tolerant humanity. Paradoxically, as postmodernist criticism points, during the twentieth century, there were more violations of those rights than in any of the preceding and less

**137**

independent States."

*Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case*

enlightened times. However, it is forgotten that modernity began in the sixteenth century, precisely with the genocide and "epistemicide" against people who inhabited the American continent at that time [35]. Now, with regard to postmodern criticism, we should also make certain clarifications. It is possible to assume that human rights are a mark of postmodernism, although taking into account that most critics speak from Eurocentrism or "postmodern reason." For me, on the other hand, the International Human Rights Law is a paradigm of "modernity/ coloniality," understanding "coloniality" as the dark and macabre side with which modernity has been operating historically. These are the political instrument—by excellence—of contemporary imperialism and for which it fights battles in its name, freeing people from regimes, practices, and barbaric customs, pontificating universal morality, and even breaking their own ethical standards. Contradictorily, these same principles of human rights and national sovereignty that have served the great powers to legitimize the new legal, social and economic order have served to evade the criticisms and questions on the flagrant violations of human rights that

On the other hand, as the configuration of IHRL depends on European and American imperialism, it can be said that there is no hope of self-government or self-determination for "non-Western" people [36]. Douzinas has explained it better by saying that the universality of human rights, although it was an invention of the west, today is used by the south and the east to access the distribution of the world product, trying to achieve a full coexistence between different peoples and the same participation in the enjoyment of the planetary wealth, when in fact the agreements of concessions of aid, ordinarily, only impose privatization, the market economy, and human rights as the gospel of liberation. In the case of indigenous people, history repeats itself: the imperialism offers a possibility of conversion, although not to

Catholicism, but to neoliberalism and its representative democracy [26].

I am not going to ignore that the IHRL has been extremely useful when it comes to raising and justifying Mapuche demands. And although, since the beginning of the 1990s, "institutional" ways have been configured that distance themselves from those that claim "political violence," the truth is that there is no known Mapuche actor who tries to avoid the imperialist doctrine of human rights to support both

In my opinion, however, the Mapuche, in turning to the IHRL—as a political and legal basis for its national liberation strategy—errs, because self-determination, under that perspective, is only allowed for those issues that do not involve territorial control or sovereignty. The Declaration on the Rights of Indigenous Peoples UN (2007) recognizes in its articles 3 and 4: "Indigenous peoples have the right to self-determination." However, Art. 46.1 warns: "Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any behavior against the Charter of the United Nations or 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

The Mapuche people do not exist beyond the IHRL. In other words, there is no possibility of self-determination beyond the limits set by imperialism in the matter of human rights. This is reaffirmed by Article 34 and 46.2 of Declaration of the year 2007, articles V, XXXV, and XXXVI of the American Declaration of Indigenous Peoples OAS (2016) and articles 8.2 and 9.1 of ILO Convention No. 169. From a

**3.2 Mapuche self-determination: toward a decolonial turn**

their political and juridical plaint as such.

*DOI: http://dx.doi.org/10.5772/intechopen.89020*

these same powers discuss.

#### *Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case DOI: http://dx.doi.org/10.5772/intechopen.89020*

enlightened times. However, it is forgotten that modernity began in the sixteenth century, precisely with the genocide and "epistemicide" against people who inhabited the American continent at that time [35]. Now, with regard to postmodern criticism, we should also make certain clarifications. It is possible to assume that human rights are a mark of postmodernism, although taking into account that most critics speak from Eurocentrism or "postmodern reason." For me, on the other hand, the International Human Rights Law is a paradigm of "modernity/ coloniality," understanding "coloniality" as the dark and macabre side with which modernity has been operating historically. These are the political instrument—by excellence—of contemporary imperialism and for which it fights battles in its name, freeing people from regimes, practices, and barbaric customs, pontificating universal morality, and even breaking their own ethical standards. Contradictorily, these same principles of human rights and national sovereignty that have served the great powers to legitimize the new legal, social and economic order have served to evade the criticisms and questions on the flagrant violations of human rights that these same powers discuss.

On the other hand, as the configuration of IHRL depends on European and American imperialism, it can be said that there is no hope of self-government or self-determination for "non-Western" people [36]. Douzinas has explained it better by saying that the universality of human rights, although it was an invention of the west, today is used by the south and the east to access the distribution of the world product, trying to achieve a full coexistence between different peoples and the same participation in the enjoyment of the planetary wealth, when in fact the agreements of concessions of aid, ordinarily, only impose privatization, the market economy, and human rights as the gospel of liberation. In the case of indigenous people, history repeats itself: the imperialism offers a possibility of conversion, although not to Catholicism, but to neoliberalism and its representative democracy [26].

#### **3.2 Mapuche self-determination: toward a decolonial turn**

I am not going to ignore that the IHRL has been extremely useful when it comes to raising and justifying Mapuche demands. And although, since the beginning of the 1990s, "institutional" ways have been configured that distance themselves from those that claim "political violence," the truth is that there is no known Mapuche actor who tries to avoid the imperialist doctrine of human rights to support both their political and juridical plaint as such.

In my opinion, however, the Mapuche, in turning to the IHRL—as a political and legal basis for its national liberation strategy—errs, because self-determination, under that perspective, is only allowed for those issues that do not involve territorial control or sovereignty. The Declaration on the Rights of Indigenous Peoples UN (2007) recognizes in its articles 3 and 4: "Indigenous peoples have the right to self-determination." However, Art. 46.1 warns: "Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any behavior against the Charter of the United Nations or 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."

The Mapuche people do not exist beyond the IHRL. In other words, there is no possibility of self-determination beyond the limits set by imperialism in the matter of human rights. This is reaffirmed by Article 34 and 46.2 of Declaration of the year 2007, articles V, XXXV, and XXXVI of the American Declaration of Indigenous Peoples OAS (2016) and articles 8.2 and 9.1 of ILO Convention No. 169. From a

*Education, Human Rights and Peace in Sustainable Development*

**3. Self-determination into Mapuche's claims: an oxymoron?**

pretend to be a basis for declaring the indigenous self-government.

decided from Europe or the United States [30].

self-determination.

its natural resources [34].

**3.1 The international human rights law as a paradigm of modernity/coloniality**

In addition to the individual perspective, the modern theory of human rights is inexorably determined by questions relating to the national sovereignty of States. However, in the case of indigenous peoples, and their right to self-determination, these issues are often ignored. And although the "Indigenous Law" has been

outlined, during the last decades, as an autonomous discipline within the IHRL, it is pertinent to remember that the concern for situation of them, arose due to the terrible working conditions in which they was, and not for questions of sovereignty. It was the International Labor Organization (ILO) that in 1921 began to show concern and to study —from the labor perspective, not the political perspective— the situation of indigenous workers. This is confirmed by one of the main antecedents to the "right to self-determination," included in ILO Convention No. 169, that it does not

The human rights are often understood as a set of faculties and institutions that, in each historical moment, specify the requirements of human dignity, freedom, and equality, which must be positively recognized by the legal systems legal issues at national and international levels [29]. Paraphrasing to Costas Douzinas, we must ask ourselves the question: Are indigenous people "completely" human or, in contrast, are they only "partially" human, with very limited rights? This question is not trivial, especially assuming that the concept of "humanity" was defined by Eurocentric modernity, heir to that Athenian-Roman citizenship: masculine, white, plutocratic, heterosexual, and so on. And of course, the barbarians —and among them the indigenous— have gradually been integrating ourselves into this "humanity," despite the fact that this membership continues to be an imperial arbitrariness,

Now, I will do analyze the classic criticisms against human rights. However, in a lot of them it is possible to discover arguments that would allow us to move toward the "decolonization" [31] of indigenous law, demonstrating why it is an oxymoron that indigenous peoples rely on the same colonial grammar to achieve their political

Considering the historicist critique, it is already possible to understand the refusal of western States—and, in our case, Chile—to respond to the main indigenous claims. In the other hand, Karl Marx did not consider this demand in his analyses; however, a rereading of their texts would predict that indigenous claims in the key of human rights, not in terms of subjective rights as such—can never be satisfied, because the content and the positivization of these rights depend totally on the convenience of the bourgeoisie and its benefit, in the context of a neoliberal and highly individualistic economy. Even assuming that the reformulation of the principle of equality has made it possible to improve the relationship between the bourgeoisie and the indigenous peoples, we must not lose sight of the fact that this reformulation aimed at "equality of exploitation of the labor force" [32, 33]. However, it should be noted that both Marxism and capitalism constitute nemesis of the indigenous worldview, since both depend on the exploitation of the land and

It has been pointed out that human rights are the hallmark of modernity, an ideal habitat for the concretion of the liberal Kantian myth that speaks of a fully autonomous, invulnerable, cosmopolitan, multicultural, and tolerant humanity. Paradoxically, as postmodernist criticism points, during the twentieth century, there were more violations of those rights than in any of the preceding and less

**136**

critical perspective, this type of writing should not be surprising since the establishment and interpretation of the Treaties, in the matter of human rights, always go under direction desired by imperialism, both global and internal [37]. It is a matter of reviewing, for example, the recommendations of the "Ruggie framework" (UN) that advocating respect for indigenous territorial control does not establish sanctions for States or companies that disobey their commitments in the area of extractive industry. In the Chilean context, on the other hand, the policies of returning land to the Mapuche people seek to repair the spoils suffered in ancestral territories, under a human rights approach, although responding only to those communities validated by the State—in attention to the homogenizing concept of "intermediate group" used by the 1980 Constitution—and without ever granting territorial control or self-government and, even, subtracting the said lands from the normal judicial traffic. The same concept "land" responds to a purely western vision—i.e., the land is indivisibly inserted into the broader concept of "territory"—and the criterion of Chilean jurisprudence remains invariable in this topic, mainly through the implementation of the "indigenous consultation" to which the Chilean State has been obliged when it ratified ILO Convention No. 169 [38].

In Chile, the Mapuche people can only aspire to a "cultural" self-determination but, even so, tolerated in the "to the extent possible," as stated in Art. 7.1 of the ILO Convention No. 169. Thus, for example, the Chilean Supreme Court has recently ratified it, allowing the practice of rituals in ancestral lands—now occupied by other people—but immediately denying the possibility of recovering them1 . Politically, and under the prism of post-dictatorial Chilean governments, Mapuche self-determination will be achieved through the dedicated parliamentary seats in the National Congress, with or without prior constitutional recognition. However, in my opinion, this only confirms to Chile like a "pluricultural" society, but not that the political self-determination or self-government of the Mapuche people will be allowed. And with that, as has been argued, the victorious revolutionaries and their legislators could be as tyrannical as their predecessors, and this has been the case in Chile, especially if we consider that, after the overthrow of Pinochet, the governments of "center-left" have imprisoned and killed more Mapuche than the right-wing governments. Finally—and although it is painful to assume it—although codification is one of the basic guarantees of fundamental rights, this does not guarantee love, respect, and affection toward others [26], and this has been demonstrated in recent years because, despite the sanctions and recommendations of international human rights organizations, Chile continues to apply a racist politic against the Mapuche people. Even, the Supreme Court has recognized this. It happened in 2016, when a Mapuche woman was imprisoned and forced to give birth while she was chained. On that occasion, the Supreme Court accepted an appeal for amparo in her favor, noting that the Chilean State discriminated doubly for being a woman and an indigenous person.<sup>2</sup>

In my opinion, Mapuche self-determination implies the reorganization and free administration of the ancestral territory but mainly to recover the lost nomogenetic capacity, independently of the relationship that may exist with the Chilean State toward the future. It is known that, at international sphere, the right to self-determination, for indigenous, has been configured from the 1980s. In the case of ILO Convention No. 169, this happened in 1989: "The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands

**139**

Human Rights Law.

**4. Conclusions**

the following suggestions:

*Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case*

they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development." However, Chile only introduced this Treaty into its internal legislation in 2008, a disdain that has characterized to governments that succeeded Pinochet, refusing to recognize the quality of the "people" of the Mapuche, precisely to avoid claims of self-determination a posteriori. In this sense, the opinion expressed by the Constitutional Court, in the year 2000, remains the rule: "(…) the expression 'indigenous peoples', should be considered within the scope of said treaty, as a set of persons or groups of people of a country who possess in common their own cultural characteristics, who are

State to relate to it is not that of sovereign political peers—as historically it was but the one inherited from the Iure Belli: the victorious State of offering mercy to the vanquished and thus, acknowledging or not their past mistakes, conditions the Mapuche to dialog in a state of subjection, under the rules and standards set by the Chilean State itself in signature tune to the international "humanitarian reason" [39]. As a result, it will not be the international law of sovereign States that will elucidate the issues between Chile and the Mapuche people, but only the IHRL, regulations before which the Mapuche only acquire relevance in a context

Considering the Kantian autonomic proposal, we could argue that the Mapuche people are still in a stage of "tutelage" or "nonage." And in attention to this plan, we could say that when a person decides to become independent, abandoning the paternal or maternal lap, he can achieve it in different ways. So, you can live outside the family home but maintained by your parents. Others—more dignified, in my opinion—will realize their independence by accepting, in the beginning, small gifts or the impulse of their parents to achieve their definitive economic emancipation. Even, there are even people who claim their own self-sufficiency but without accepting any kind of family support, regardless of whether they break or retain the family bond that unites them. And using the analogy, we could see our relationship with the Chilean State in the same way because if selfdetermination is what we want, we must decide if we are going to break all political and territorial relations with Chile, if we are going to negotiate a personal status that identify us in the whole country, if a "plurinational region" will be defined, and so on. Precisely, that is the legal explanation why the relationship between the Mapuche people and the Chilean State is not governed by International Public Law, as it happens between sovereign States, and at the same time, it allows us understand the strategy that transforms the juridical or legal claims in "facts of political transcendence" [40], in order to access protection provided by the International

Bearing that what the Mapuche people want is a political self-determination, in attention to International Public Law, the autonomous movement should consider

1.Define preliminary issues. From the reading, the analysis, and the praxis of the Mapuche autonomist movement, it is not possible to clearly extract what is the scope of the self-determination sought, the territory that will encompass, as well as the personal status that will define who can be considered "Mapuche."

<sup>3</sup> This text corresponds to the recital N ° 44 of the judgment issued on August 4, 2000, in case N ° 309.

The formula proposed by the Chilean

*DOI: http://dx.doi.org/10.5772/intechopen.89020*

not endowed with public powers (…)".3

of vulnerability and victimization.

<sup>1</sup> Recitals 3 and 6 of the judgment, dated July 26, 2018, case N° 9021–2018, "Painepe con Sociedad Agrícola Las Vertientes Limitada."

<sup>2</sup> This jugment was delivered on December 1, 2016, in case N° 92.795–16.

#### *Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case DOI: http://dx.doi.org/10.5772/intechopen.89020*

they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development." However, Chile only introduced this Treaty into its internal legislation in 2008, a disdain that has characterized to governments that succeeded Pinochet, refusing to recognize the quality of the "people" of the Mapuche, precisely to avoid claims of self-determination a posteriori. In this sense, the opinion expressed by the Constitutional Court, in the year 2000, remains the rule: "(…) the expression 'indigenous peoples', should be considered within the scope of said treaty, as a set of persons or groups of people of a country who possess in common their own cultural characteristics, who are not endowed with public powers (…)".3 The formula proposed by the Chilean State to relate to it is not that of sovereign political peers—as historically it was but the one inherited from the Iure Belli: the victorious State of offering mercy to the vanquished and thus, acknowledging or not their past mistakes, conditions the Mapuche to dialog in a state of subjection, under the rules and standards set by the Chilean State itself in signature tune to the international "humanitarian reason" [39]. As a result, it will not be the international law of sovereign States that will elucidate the issues between Chile and the Mapuche people, but only the IHRL, regulations before which the Mapuche only acquire relevance in a context of vulnerability and victimization.

Considering the Kantian autonomic proposal, we could argue that the Mapuche people are still in a stage of "tutelage" or "nonage." And in attention to this plan, we could say that when a person decides to become independent, abandoning the paternal or maternal lap, he can achieve it in different ways. So, you can live outside the family home but maintained by your parents. Others—more dignified, in my opinion—will realize their independence by accepting, in the beginning, small gifts or the impulse of their parents to achieve their definitive economic emancipation. Even, there are even people who claim their own self-sufficiency but without accepting any kind of family support, regardless of whether they break or retain the family bond that unites them. And using the analogy, we could see our relationship with the Chilean State in the same way because if selfdetermination is what we want, we must decide if we are going to break all political and territorial relations with Chile, if we are going to negotiate a personal status that identify us in the whole country, if a "plurinational region" will be defined, and so on. Precisely, that is the legal explanation why the relationship between the Mapuche people and the Chilean State is not governed by International Public Law, as it happens between sovereign States, and at the same time, it allows us understand the strategy that transforms the juridical or legal claims in "facts of political transcendence" [40], in order to access protection provided by the International Human Rights Law.
