**2.4 Victimhood: a strategy for recognition and enjoyment of indigenous rights**

Also linked to vulnerability—and in the context of the IHRL—is the phenomenon of "victimhood," that is, the legitimacy that certain people have to access the recognition and enjoyment of certain benefits as forms of State reparation after violations of their human rights are committed, generally, by agents of the State.

On the juridical sphere, the situation of victims has historically been approached from the perspective of civil law and, also, of criminal law. However in the political sphere, this happened during the twentieth century, linked to the socalled processes of "transitional justice" and where, the victim became a construction not only legal, but also historical, social, cultural, economic and political wide and with a precise objective: to establish the criteria or legal requirements so that people who qualify as victims can access repair plans and, in general, government assistance [23].

Currently, vulnerability is determined by "human embodiment" [24]. Previously, it had been argued that for the contemporary moral economy, the body and its suffering were extremely useful when it came to claiming and accessing the rights offered by the capitalist democracies. There is no doubt that this "politic of suffering" is extremely useful for those States that, without to change their structures of exclusion and discrimination, manage to respond to the claims of groups historically violated, indemnifying them and reintegrating them into their citizenship, although that yes: under the condition of "victims" [25, 26]. Certainly, we must not forget that if one or several people are recognized as victims, this may imply to enjoy a series of benefits [27], demonstrating why "victimhood," in the context of transitional justice, turns out to be extremely useful to the time to negotiate and generate repair programs. Moreover, this strategy of victimhood is being useful to those convicted of crimes against humanity who, claiming their status as "victims," demand respect for their human rights and the possibility of opting for prison benefits [28].

However, as I will explain below, despite the fact that "victimhood" entails certain benefits, this strategy is ineffective and even paradoxical when it comes to claiming self-determination and self-government, in the context of the IHRL. At least, in case of Mapuche people.

*Education, Human Rights and Peace in Sustainable Development*

as prescribed in Art. 7.1 of the ILO Convention No. 169.

**under the international human rights law**

government, and, in general, by citizens [18].

**2.3 The indigenous peoples as a "vulnerable" human group protected** 

continue to doubt their full legal capacity [12].

this country [13].

groups."

No. 18.802 was it possible to eliminate this impediment, despite the fact that it will

Regarding the indigenous people, on the other hand, this incapacity continues to affect us; for that reason, to consider ourselves fully autonomous or capable before the Chilean law is highly questionable. In fact this happens, for example, as a result of racism and discrimination that prevents us, among other things, access to good jobs even having merits for it: "socioeconomic inequality in Chile has had an ethnic and racial connotation," said a recent study by the United Nations Development Programme (UNDP). What is more, when categorizing surnames and social position—in people born between 1940 and 1970—"Aillapán" is one of the 50 surnames whose family does not have a single prestigious professional in

In the legal sphere, the antecedents are diverse, beginning with that established in Art. 13 of Act No. 19.253, and by virtue of which it is limited to the natives to freely dispose of their lands [14]. However, the most important precedent comes from IHRL because it recognizes to indigenous peoples' "right to self-determination" and "self-government," but conditioning their exercise to respect human rights and fundamental rights was agreed internationally by the States. In a sentence, right to self-determination will be effective—only—"to the extent possible,"

Through the twentieth century, the historic exclusion suffered by many groups

of people came to be shored by means of the anti-discrimination law, identifying those groups "disadvantaged" or "especially vulnerable" to then propose new paradigms of coexistence through positive discrimination and affirmative action [15]. During the first years of the current millennium, however, the social sciences have turned to redefining the concepts of "vulnerability" and "vulnerable human

The concept of vulnerability is not new to western law. However, its current understanding and complexity responds to a typically European development [16]. And although these terms are not explicitly recognized in the European Convention on Human Rights (1950) or in another regional instrument, the truth is that its theoretical elaboration has been received and promoted by various human rights organizations attached to the UN and has even been expressed in the European jurisprudence of national and regional courts [17]. Subsequently, it has also spread to Latin America and Chile, a country that often describes indigenous peoples as "vulnerable," language used not only in academic area but also by the courts, by the

One of the current world references of the thesis on "vulnerability," in the juridical field, is the American Martha Albertson Fineman. She says that all human beings are "vulnerable" and, thus, has tried to redefine the traditional operative concepts in anti-discrimination law, particularly, the liberal tendency that denies people their vulnerability, under the pretext of avoiding social stigmatization [19]. Yet, this thesis has received some critics that aim at the "universalization" of the vulnerability, because not all human experiences it in the same way [20], a question that Fineman has tried to explain. The problem, however, is that Fineman ignores that the state structures or "regimes" are constructed precisely to justify and validate inequities or "subordiscriminations," in order to justify the classic liberalism's calls for equality before the law for all peoples. Nevertheless, only recognizing and

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