**4. Conclusions**

*Education, Human Rights and Peace in Sustainable Development*

been obliged when it ratified ILO Convention No. 169 [38].

for being a woman and an indigenous person.<sup>2</sup>

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

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

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

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

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

.

**138**

Las Vertientes Limitada."

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

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.


**141**

**Author details**

Jorge Aillapán Quinteros

Center of Mapuche Studies and Research "RÜMTUN", Santiago, Chile

© 2020 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium,

\*Address all correspondence to: abogado@aillapan.cl

provided the original work is properly cited.

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

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

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